Case 3:13-cv-30146 Document 1 Filed 08/08/13 Page 1 of 15

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

CLAYTON RICHARD GORDON and )

PRECIOSA ANTUNES, on behalf of

)

themselves and others similarly situated, )

)

Plaintiff-Petitioners,

)

)

v.

)

)

JANET NAPOLITANO,

)

Secretary of Homeland Security,

)

ERIC H. HOLDER, JR.,

)

Attorney General of the United States,

)

JOHN SANDWEG,

)

Acting Director, Immigration and Customs )

Enforcement,

)

SEAN GALLAGHER

)

Acting Field Office Director,

)

Immigration and Customs Enforcement, )

New England Field Office,

)

CHRISTOPHER DONELAN,

)

Sheriff of Franklin County,

)

MICHAEL G. BELLOTTI,

)

Sheriff of Norfolk County,

)

STEVEN W. TOMPKINS,

)

Sheriff of Suffolk County,

)

THOMAS M. HODGSON,

)

Sheriff of Bristol County, and

)

JOSEPH D. MCDONALD, JR.,

)

Sheriff of Plymouth County,

)

)

Defendant-Respondents. )

)

Civ. No. 13-30146

CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS

Plaintiff-Petitioners Clayton Richard Gordon and Preciosa Antunes (“Plaintiffs”) are noncitizens who are being unlawfully detained without a bond hearing under the mandatory

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immigration detention provision, 8 U.S.C. § 1226(c). Relying on the decision of the Board of Immigration Appeals (“BIA”) in Matter of Rojas, 23 I&N Dec. 117, 127 (BIA 2001), the government is subjecting Plaintiffs to mandatory, no-bond detention even though they were not taken into immigration detention at the time of their release from criminal custody for the relevant predicate offenses. Their mandatory detention violates the plain meaning of the statute, which requires detention without the possibility of bond only for individuals who are detained “when [they are] released” from criminal custody for a relevant removable offense. See § 1226(c). As a result of this erroneous application of § 1226(c), Plaintiffs may spend months or years in detention while their immigration cases proceed, without even the opportunity to be considered for release on bond or on conditional parole.
To remedy this unlawful detention, Plaintiffs, on behalf of themselves and all others similarly situated, seek individual bond hearings at which an Immigration Judge can determine whether their detention is justified based on considerations of flight risk and danger to the community. Plaintiffs bring this action as a petition for writ of habeas corpus and a class action complaint for declaratory and injunctive relief or, in the alternative, a class action habeas.
Plaintiff Clayton Richard Gordon has lived in the United States as a lawful permanent resident since 1982, when he was six years old. He has been detained without a bond hearing since June 20, 2013, because immigration authorities have erroneously subjected him to mandatory detention under § 1226(c). Gordon is being detained without a bond hearing based on an offense for which he was arrested, and released from criminal custody, in 2008, and for which he spent less than a day in jail.
Plaintiff Preciosa Antunes has lived in the United States as a lawful permanent resident since 1983, when she was 14 years old. She has been detained without a bond hearing since May
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10, 2013, because immigration authorities have erroneously subjected her to mandatory detention under § 1226(c). Antunes is being detained without a bond hearing based on offenses for which she was released from criminal custody in or around January, 2012, after serving a total of 90 days in jail.
Plaintiffs, and all others similarly situated, were not detained at the time of their release from criminal custody for the offenses that the government has invoked as grounds for their mandatory detention. Accordingly, they are not properly detained under § 1226(c). Plaintiffs respectfully request that this Court order that they and all others similarly situated be provided with individualized bond hearings to determine whether their continued detention is justified by considerations of flight risk and danger.
PARTIES 1. Plaintiff Clayton Richard Gordon is a native of Jamaica and was admitted to the United States as a lawful permanent resident of the United States in 1982 at the age of six. He was detained by Immigration and Customs Enforcement (“ICE”) on June 20, 2013, and was subjected to mandatory detention. He remains in ICE custody at the Franklin County Jail and House of Correction in Greenfield, Massachusetts. 2. Plaintiff Preciosa Antunes is a native of Portugal and was admitted to the United States as a lawful permanent resident in 1983, at the age of 14. She was detained by ICE on May 10, 2013, and was subjected to mandatory detention. She remains in ICE custody at the Franklin County Jail and House of Correction in Greenfield, Massachusetts. 3. Defendant-Respondent Janet Napolitano is the Secretary of Homeland Security and the most senior official in the Department of Homeland Security (“DHS”), the arm of the federal government responsible for the enforcement of immigration laws. Secretary Napolitano is
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the ultimate legal custodian of the Plaintiffs and the members of the proposed Class. She is sued in her official capacity.
4. Defendant-Respondent Eric Holder is the Attorney General of the United States and the most senior official in the Department of Justice. He has the authority to interpret the immigration laws and adjudicate removal cases. By regulation, the Attorney General delegates initial exercise of this responsibility to the immigration courts and the BIA, which are administered by the Department of Justice’s Executive Office of Immigration Review. He is sued in his official capacity.
5. Defendant-Respondent John Sandweg is the Acting Director of ICE. ICE is the agency within DHS that is responsible for apprehension, detention, and removal of noncitizens from the United States. Acting Director Sandweg is a legal custodian of the Plaintiffs and other members of the proposed Class. He is sued in his official capacity.
6. Defendant-Respondent Sean Gallagher is the Acting Field Office Director for ICE Enforcement and Removal Operations in ICE’s Boston Field Office. He is a legal custodian of the Plaintiffs and other members of the proposed Class, all of whom are held at various detention facilities in Massachusetts. He is sued in his official capacity.
7. Defendant-Respondent Christopher Donelan is the Sheriff of Franklin County and has immediate custody of Plaintiffs Gordon and Antunes, and, on information and belief, other members of the proposed Class. He has custody of Gordon, Antunes, and other members of the proposed Class because ICE contracts with Franklin County to house immigration detainees such as Gordon and Antunes in county correctional facilities. Sheriff Donelan is sued in his official capacity.
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8. Defendant-Respondent Michael G. Bellotti is the Sheriff of Norfolk County and, on information and belief, has immediate custody of members of the proposed Class. He has custody of members of the proposed Class because ICE contracts with Norfolk County to house immigration detainees in county correctional facilities. Sheriff Bellotti is sued in his official capacity.
9. Defendant-Respondent Steven W. Tompkins is the Sheriff of Suffolk County and, on information and belief, has immediate custody of members of the proposed Class. He has custody of members of the proposed Class because ICE contracts with Suffolk County to house immigration detainees in county correctional facilities. Sheriff Tompkins is sued in his official capacity.
10. Defendant-Respondent Thomas M. Hodgson is the Sheriff of Bristol County and, on information and belief, has immediate custody of members of the proposed Class. He has custody of members of the proposed Class because ICE contracts with Bristol County to house immigration detainees in county correctional facilities. Sheriff Hodgson is sued in his official capacity.
11. Defendant-Respondent Joseph D. McDonald, Jr. is the Sheriff of Plymouth County and, on information and belief, has immediate custody of members of the proposed Class. He has custody of members of the proposed Class because ICE contracts with Plymouth County to house immigration detainees in county correctional facilities. Sheriff McDonald is sued in his official capacity.
JURISDICTION 12. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question), § 1361 (federal employee mandamus action), § 1651 (All Writs Act—mandamus), and § 2241 (habeas
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corpus); and Art. I § 9, cl. 2 of the U.S. Constitution (“Suspension Clause”), as Plaintiffs and members of the proposed Class are currently in custody under color of the authority of the United States in violation of the Constitution, laws, or treaties of the United States.
VENUE 13. Venue lies in the District of Massachusetts because Plaintiffs and members of the proposed Class are currently detained in Massachusetts, and a substantial part of the events or omissions giving rise to their claims occurred in Massachusetts. 28 U.S.C. § 1391.
EXHAUSTION 14. Plaintiffs have exhausted their administrative remedies to the extent required by law, and judicial action is their only remaining remedy. 15. No statutory exhaustion requirement applies to Plaintiffs’ claim of unlawful detention. See Sengkeo v. Horgan, 670 F. Supp. 2d 116, 121 (D. Mass. 2009). 16. Nevertheless, on July 17, 2013, Gordon requested a bond hearing before the Immigration Judge. The Immigration Judge denied Gordon an individualized hearing, finding Gordon was subject to mandatory detention under 8 U.S.C. § 1226(c) pursuant to the BIA’s decision in Matter of Rojas, 23 I&N Dec. 117. 17. On June 5 and July 3, 2013, Antunes argued she was eligible for release on bond. The Immigration Judge denied Antunes an individualized hearing, finding that she was subject to mandatory detention under 8 U.S.C. § 1226(c) pursuant to BIA precedent. 18. These efforts and any further efforts to seek relief through administrative proceedings, by the Plaintiffs or by any member of the proposed Class, are futile. The BIA has found that 8 U.S.C. § 1226(c) applies to any noncitizen who was released from non-DHS custody after October 8, 1998 in connection with one of the offenses enumerated in the statute,
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regardless of whether there was a gap in time between that release and detention by ICE. Rojas, 23 I&N Dec. at 127; see also Matter of Garcia Arreola, 25 I&N Dec. 267, 271 n.4 (BIA 2010) (clarifying that BIA was not departing from Matter of Rojas decision). In light of the BIA’s position, Plaintiffs and other members of the proposed Class have no reasonable prospect of receiving a bond hearing before an Immigration Judge without an order of this Court. Therefore, further efforts would be futile.
FACTS I. INDIVIDUAL ALLEGATIONS
A. Clayton Richard Gordon 19. Plaintiff Clayton Richard Gordon left Jamaica and immigrated to the United States as a lawful permanent resident in 1982, when he was six years old. 20. Gordon joined the National Guard in 1994. In 1996, Gordon began serving in active duty in the United States Army. He was stationed in Fort Hood, Texas. Gordon was honorably discharged in 1999. 21. Gordon met his current fiancée around 2008, and the couple had a son in 2010. They own a home in Bloomfield, Connecticut. 22. DHS is seeking Gordon’s removal based on a 2008 drug offense. 23. In 2008, Gordon was arrested after police found cocaine in the home that he shared. He was released from custody within a day, and later pleaded guilty to possession of narcotics with intent to sell. He received a sentence of seven years, suspended over a three-year probationary term. Gordon successfully completed probation and never spent a day in jail.
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24. On June 20, 2013, Gordon was stopped by ICE agents while driving to work and was taken into ICE custody. He has been subject to mandatory detention since then based on the government’s interpretation of 8 U.S.C. § 1226(c).
25. Because Gordon was found to be subject to mandatory detention, the Immigration Judge did not consider facts that might have been relevant in a bond hearing, including that Gordon has lived in the United States since childhood, served in the military, lives with his United States citizen fiancée and son in the home that they own, has a successful business, and has been working on a project to open a halfway house for women released from incarceration.
B. Preciosa Antunes 26. Plaintiff Preciosa Antunes is a native of Portugal and was admitted to the United States as a lawful permanent resident in 1983, at the age of 14. 27. Antunes has three children and four young grandchildren, and owns a home in Bridgeport, Connecticut. 28. DHS is seeking Antunes’ removal based on a 2006 larceny offense, for which she was fined $75, and 2011 convictions for burglary and larceny, for which she was required to serve concurrent periods of 90 days in jail. 29. In 2006, Antunes was convicted of larceny in the sixth degree and a fine of $75 was imposed. In January, 2011, Antunes was arrested after it was reported that she and another person had taken two garbage bags out of a house that was unoccupied and for sale. The bags appear to have contained towels. In connection with these events, Antunes pleaded guilty to second-degree burglary in October, 2011, and was sentenced to five years in jail, with the execution suspended after 90 days. She continues to be on probation. Also in 2011, Antunes pleaded guilty to larceny in the sixth degree after allegedly taking a package from the front of a
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home. She was sentenced to 90 days’ imprisonment, concurrent with her sentence in the burglary case. She was released from jail in connection with theses offenses in or around January, 2012.
30. ICE did not take Antunes into custody at that time. Instead, she was not taken into ICE custody until May 10, 2013, when ICE agents showed up at her job. She has been subjected to mandatory detention since then based on the government’s interpretation of 8 U.S.C. § 1226(c).
31. Because Antunes was found to be subject to mandatory detention, the Immigration Judge did not consider facts that might have been relevant in a bond hearing, including that Antunes has lived in the United States as a permanent resident since she was a teenager, that her crimes were nonviolent, that she owns a home, and that she spends her time working to pay her mortgage and caring for her two grandchildren so that her daughter can work. II. CLASS ACTION ALLEGATIONS
32. Plaintiffs bring this action for themselves and as a class action on behalf of others similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), or, in the alternative, as a class action habeas, on behalf of a class defined as:
All individuals in Massachusetts who are or will be subjected to mandatory detention under 8 U.S.C. § 1226(c) who were not taken into immigration custody at the time of their release from criminal custody for an offense referenced in § 1226(c)(1). 33. Numerosity: The proposed Class meets the requirements of Federal Rule of Civil Procedure 23(a)(1) because it is so numerous that joinder would be impracticable. On information and belief, on any given day approximately 200 individuals in Massachusetts are being subjected by immigration authorities to mandatory detention under 8 U.S.C. § 1226(c). On information and belief, some 50 or more of those individuals may fall into the proposed Class. In addition, the government’s continued detention of individuals who fall within the Class will
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bring additional members into the Class in the future. Moreover, the inherent transitory state of the putative class members further demonstrates that joinder is impracticable.
34. Commonality: The proposed Class meets the requirements of Federal Rule of Civil Procedure 23(a)(2) because application of the mandatory detention provision to members of the proposed Class is the result of the same erroneous interpretation of 8 U.S.C. § 1226(c) adopted by immigration authorities: namely that § 1226(c) applies to all individuals with a removable offense designated under the statute, regardless of whether they were detained at the time of their release from custody in connection with the offense. This erroneous interpretation applies to all members of the class and raises common questions of law in this action, including whether the government’s interpretation of § 1226(c) in Matter of Rojas should be rejected and whether § 1226(c) applies only to those who are detained at the time of their release from criminal custody for an offense falling within one of the categories designated under the statute.
35. Typicality: The requirements of Federal Rule of Civil Procedure 23(a)(3) are satisfied. Plaintiffs’ claims are typical of those of the proposed Class as a whole: Plaintiffs and the class of individuals they seek to represent have all been subjected to mandatory detention despite not having been detained by immigration authorities at the time of their release from the relevant criminal custody. Plaintiffs assert their detention violates 8 U.S.C. § 1226. Their claims therefore raise the same legal question that lies at the core of the Class claims.
36. Adequacy: The requirements of Federal Rule of Civil Procedure 23(a)(4) are satisfied. Plaintiffs will adequately represent the proposed Class because they seek the same relief as the other members of the proposed Class, namely an individualized bond hearing, and they do not have any interests adverse to those of the proposed Class as a whole. In addition, the proposed Class is represented by counsel from the American Civil Liberties Union Foundation of
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Massachusetts, the American Civil Liberties Union Immigrants’ Rights Project, and the Political Asylum / Immigration Representation Project. These counsel have experience litigating the specific issues raised in this case, and litigating class actions.
37. Finally, the proposed Class satisfies Federal Rule of Civil Procedure 23(b)(2) because immigration authorities have acted on grounds that are generally applicable to the proposed Class, in that immigration authorities have applied a clear and consistent, though incorrect, interpretation of 8 U.S.C. § 1226(c) in imposing mandatory detention on members of the proposed Class. Classwide injunctive and declaratory relief is therefore appropriate.
CLAIM FOR RELIEF VIOLATION OF 8 U.S.C. §1226 Claim for Plaintiffs and Proposed Class 38. The foregoing allegations are realleged and incorporated herein. 39. Section 1226(a) authorizes immigration authorities to release noncitizens who are placed into removal proceedings, including Plaintiffs and members of the proposed Class, on bond or conditional parole, “[e]xcept as provided in subsection (c).” Section 1226(c) requires detention of certain noncitizens who were taken into immigration custody “when . . . released” from criminal custody for a removable offense. It does not apply to noncitizens who, like Plaintiffs and all other members of the proposed Class, were not detained “when . . . released” from custody for a removable offense referenced in § 1226(c)(1). 40. Plaintiffs’ detention contradicts the plain language of the mandatory detention provision as well as its statutory context, raises serious constitutional questions, and is contrary to the First Circuit’s analysis of § 1226(c) in Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009).
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41. Because Plaintiffs and other members of the proposed Class were not detained at the time of their release from criminal custody for their relevant offenses, their detention without a bond hearing violates § 1226 and is therefore unlawful.
REQUEST FOR ORAL ARGUMENT In accordance with Local Rule 7.1(d), counsel respectfully requests oral argument.
PRAYER FOR RELIEF Petitioner asks that this Court grant the following relief: 1. Certify this matter as a class action, appoint Plaintiffs as class representatives, and appoint the undersigned counsel as class counsel; 2. Declare that Defendant-Respondents’ policy and practice of subjecting Plaintiffs and the members of the proposed Class to mandatory detention despite their not having been taken into immigration custody at the time of their release from criminal custody for the relevant offense is a violation of 8 U.S.C. § 1226, and that Plaintiffs and members of the proposed Class are subject to § 1226(a) and are entitled to individualized bond hearings; 3. Order that Defendant-Respondents cease and desist their policy of subjecting Plaintiffs and members of the proposed Class to mandatory detention under § 1226(c) despite their not having been taken into immigration custody at the time of their release from criminal custody for the relevant offense; 4. Order Defendant-Respondents to provide Plaintiffs and the members of the proposed Class with individualized bond hearings as required under § 1226(a); 5. Grant a writ of habeas corpus to Plaintiff Clayton Richard Gordon ordering an immediate individualized bond hearing under § 1226(a);
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6. Grant a writ of habeas corpus to Plaintiff Preciosa Antunes ordering an immediate
individualized bond hearing under § 1226(a);
7. Order that Defendant-Respondents provide the Court and Plaintiffs’ counsel with
at least two business days’ notice prior to any removal of the Plaintiffs from the jurisdiction;
8. Award attorney fees and costs under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d) and 5 U.S.C. § 504, if applicable; and
9. Order any further relief this Court deems just and proper.
Respectfully submitted this 8th day of August, 2013.
/s/ Adriana Lafaille Matthew R. Segal (BBO # 654489) Adriana Lafaille (BBO # 680210) Jessie J. Rossman (BBO # 670685) American Civil Liberties Union
of Massachusetts 211 Congress Street Boston, Massachusetts 02110 (617) 482-3170 x 308
/s/ Judy Rabinovitz Judy Rabinovitz* American Civil Liberties Union
Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2660
*Motion for admission pro hac vice forthcoming.
/s/ Elizabeth Badger Elizabeth Badger (BBO # 663107) Political Asylum / Immigration Representation
Project 98 N. Washington Street, Suite 106 Boston, MA 02114 (617) 603-1524
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Certificate of Service
I, Adriana Lafaille, hereby certify that a true copy of the foregoing Class Action Complaint and Petition for Writ of Habeas Corpus, together with attached Civil Cover Sheet, Category Sheet, Motion for Preliminary Injunctive Relief, Memorandum of Law in Support of Motion for Preliminary Injunctive Relief, and accompanying exhibits, was served on August 8, 2013, by certified U.S. mail, upon the following:
Janet Napolitano, Secretary U.S. Department of Homeland Security 245 Murray Lane, SW Washington, DC 20528
Eric H. Holder, Jr. Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
John Sandweg, Acting Director U.S. Immigration and Customs Enforcement 500 12th St., SW Washington, D.C. 20536
Sean Gallagher Acting Field Office Director Immigration and Customs Enforcement, Boston Field Office 10 New England Executive Park Burlington, MA 01803
Carmen M. Ortiz U.S. Attorney for the District of Massachusetts John Joseph Moakley U.S. Federal Courthouse One Courthouse Way, Suite 9200 Boston, MA 02210
Christopher Donelan, Sheriff Franklin County Sheriff's Office 160 Elm Street Greenfield, MA 01301
Michael G. Bellotti, Sheriff Norfolk County Sheriff's Office and Correctional Center 200 West Street Dedham, MA 02027
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Steven W. Tompkins, Sheriff Executive Office 20 Bradston Street Boston, MA 02118 Thomas M. Hodgson, Sheriff Bristol County House of Correction & Jail 400 Faunce Corner Road North Dartmouth, MA 02747 Joseph D. McDonald, Jr., Sheriff Plymouth County Sheriff's Department 24 Long Pond Road Plymouth, MA 02360
Respectfully submitted, /s/ Adriana Lafaille Adriana Lafaille (BBO # 680210) American Civil Liberties Union of Massachusetts
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CLAYTON RICHARD GORDON, Plaintiff/Petitioner
v.
JANET NAPOLITANO, Secretary of Homeland Security; ERIC H. HOLDER, JR., Attorney General of the U.S.; JOHN SANDWEG, Acting Director, Immigration and Customs Enforcement; SEAN GALLAGHER, Acting Director, Immigration and Customs Enforcement; CHRISTOPHER DONELAN, Sheriff of Franklin County; MICHAEL G. BELLOTTI, Sheriff of Norfolk County; STEVEN W. TOMPKINS, Sheriff of Suffolk County; THOMAS M. HODGSON, Sheriff of Bristol County; and, JOSEPH D. MCDONALD, JR., Sheriff of Plymouth County.
Defendants/Respondents

) ) ) ) ) C.A. NO. 13-cv-30146-MAP ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER REGARDING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION, and DEFENDANTS’ MOTION TO DISMISS
(Dkt. Nos. 1, 2 & 13)

October 23, 2013

PONSOR, U.S.D.J.

Plaintiff, a lawful permanent resident being held by

the government pursuant to 8 U.S.C. § 1226(c), has brought a

petition for writ of habeas corpus seeking an individualized

bond hearing to challenge his immigration detention. Defendants are: Janet Napolitano, Secretary of Homeland Security; Eric Holder, Attorney General; John Sandweg, Acting Director of Immigrations and Customs Enforcement (“ICE”); Sean Gallagher, Acting Field Office Director for the New England Field Office of ICE; Christopher Donelan, Sheriff of Franklin County; Michael Bellotti, Sheriff of Norfolk County; Steven Tompkins, Sheriff of Suffolk County; Thomas Hodgson, Sheriff of Bristol County; and, Joseph McDonald, Jr., Sheriff of Plymouth County. Plaintiff has also filed a Motion for a Preliminary Injunction (Dkt. No. 2), and Defendants have filed a Motion to Dismiss (Dkt. No. 13).
Section 1226(c) requires the government to detain certain non-citizens “when the alien is released.” At issue is whether the “when . . . released” language imposes an immediacy requirement and limits the class of aliens subject to mandatory detention, or whether it merely states the time at which the government can first act.
Defendants take the position that “when . . . released” is ambiguous, and thus deference to the Board of Immigration
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Appeal’s (“BIA”) interpretation in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), is required under Chevron v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Defendants further argue that the statute does not provide a sanction for the government’s delay in acting, and it would thus be inappropriate for the court to impose one. See e.g., U.S. v. Montalvo-Murillo, 495 U.S. 711, 713-14 (1990).
Plaintiff disagrees that the language is ambiguous. In his view, “when . . .released” literally means “at the time of release.” Moreover, the BIA’s view allows the government to act without limitation after a non-citizen is released, thereby defeating the congressional purpose behind the statute. Since the language and purpose of the statute are clear, no deference to the BIA is required. Finally, under Plaintiff’s interpretation, the government does not lose any power since it can still detain a non-citizen under § 1226(a).
This complex question has divided courts around the country. Compare Sylvan v. Att’y Gen. of U.S., 714 F.3d 150 (3d Cir. 2013)(finding that the plaintiff’s reading imposed an impermissible sanction for the government’s delay in
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acting); and Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012) (deferring to the government’s interpretation under Chevron); with Castaneda v. Souza, No. 13-10874-WGY, 2013 WL 3353747 (D. Mass. July 3, 2013)(finding the statute unambiguous and granting habeas relief); and Baquera v. Longshore, No. 13-cv-00543, 2013 WL 2423178, at *4, n.3 (D. Colo. June 4, 2013)(compiling cases finding in favor of the plaintiff’s reading). This court will shortly issue a memorandum providing its detailed perspective on this issue. Ultimately though, the court is persuaded by District Court Judge William G. Young’s opinion in Castaneda adopting Plaintiff’s reading of the statute, and granting habeas relief.
Specifically, the plain language of the statute, Congress’s intent in enacting the statute, and the structure of the statute unambiguously describe the time at which the government must act to detain a non-citizen under § 1226(c). Even if that language were ambiguous, the BIA’s interpretation yields impermissibly absurd results and would not warrant deference. Finally, the loss of authority cases are not applicable to the statute in question here, since
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the government may still act under § 1226(a). In order to avoid needless delay to Plaintiff while
this court’s more detailed memorandum is prepared, Plaintiff’s individual petition for writ of habeas corpus (Dkt. No. 1) is hereby ALLOWED, Plaintiff’s Motion for Preliminary Injunction (Dkt. No. 2) is DENIED without prejudice, and Defendants’ Motion to Dismiss is DENIED (Dkt. No. 13). Defendants are hereby ordered to grant Plaintiff an individualized bond hearing within thirty days of this order.
Also within thirty days, counsel will file a memoranda on the question of whether it is proper for the court to retain the case to resolve the class-wide allegations.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CLAYTON RICHARD GORDON;

)

GUSTAVO RIBEIRO FERREIRA;

)

VALBOURN SAHIDD LAWES; NHAN

)

PHUNG VU; and CESAR

)

CHAVARRIA RESTREPO on

)

behalf of themselves and others )

similarly situated,

)

Plaintiffs/Petitioners,

)

)

)

v.

) C.A. NO. 13-cv-30146-MAP

)

JEH CHARLES JOHNSON, Secretary )

of Homeland Security; ERIC H. )

HOLDER, JR., Attorney General; )

JOHN SANDWEG, Acting Director, )

Immigration and Customs

)

Enforcement; SEAN GALLAGHER, )

Acting Field Director,

)

Immigration and Customs

)

Enforcement; CHRISTOPHER

)

DONELAN Sheriff of Franklin

)

County; MICHAEL G. BELLOTTI, )

Sheriff of Norfolk County;

)

STEVEN W. TOMPKINS, Sheriff of )

Suffolk County; THOMAS M.

)

HODGSON, Sheriff of Bristol

)

County; and JOSEPH D. MCDONALD, )

JR., Sheriff of Plymouth

)

County.

)

Defendants/Respondents.

)

MEMORANDUM & ORDER REGARDING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 16, 83, 102, & 107)

May 21, 2014

PONSOR, U.S.D.J.

I. INTRODUCTION Plaintiffs represent a class of aliens who, subsequent to their release from criminal custody, were detained by Immigrations & Customs Enforcement (“ICE”) under the mandatory detention provisions of 8 U.S.C. § 1226(c). That statute permits ICE to detain an alien “when [he or she] is released” from the predicate criminal custody –- a phrase this court has interpreted as limiting the class of individuals subject to mandatory detention to those taken into ICE custody promptly. Three issues warrant analysis before this case reaches its terminus. First, on March 27, 2014, the court granted Plaintiffs’ motions for class certification. Gordon v. Johnson –F.R.D. –-, 2014 WL 1274059 (D. Mass. Mar. 27, 2014). Though it briefly presented the reasons for its decision, the court informed the parties that a more detailed memorandum would be forthcoming. Second, Plaintiffs have filed two identical motions for summary judgment. (Dkt. Nos. 83 & 107.) Because this case presents a single question of law –- one already settled –-
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no genuine dispute of fact exists. Accordingly, the court will allow Plaintiffs’ motions and direct the clerk to enter judgment as a matter of law in their favor.
Finally, since summary judgment is appropriate, the question of the proper relief must be addressed. This analysis presents three related issues: (1) whether 8 U.S.C. § 1252(f)(1) bars class-wide injunctive relief; (2) if not, whether a permanent injunction is warranted; and (3), if so, what the substance of the injunctive order should be. As an injunction here would not enjoin the operation of the law but merely require Defendants to comply with it, and because Plaintiffs have established a need for equitable relief, the court will grant Plaintiffs equitable relief in the form set forth in the conclusion of this memorandum.
II. BACKGROUND A. Factual Background
The court has previously provided a detailed discussion of the underlying facts and statutory framework in this case. Gordon v. Johnson, –- F. Supp. 2d –-, 2013 WL 6905352 (D. Mass. Dec. 31, 2013). A brief summary is as follows.
Plaintiffs represent a class of aliens detained in
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Massachusetts as of March 27, 2014, who were (or will be)
released from criminal confinement and, after a period of
time, detained by ICE pursuant to § 1226(c). That statute
requires ICE to detain specified individuals -- essentially
those convicted of enumerated, relatively serious, predicate
crimes -- “when the alien is released.” § 1226(c)(1).
Unlike a companion provision, § 1226(a)(the portion of the
law that provides discretionary authority to detain aliens
pending removal generally), § 1226(c) appears to bar the
detained individual from petitioning for conditional release
ever.1
The named Plaintiffs’ cases are representative of the
class. Plaintiff Richard Gordon was released from very
brief criminal custody in Connecticut and was only taken
1 Whether § 1226(c) includes a reasonableness limit on the length of time an individual may be detained without an opportunity for a bail hearing is a question this court has recently addressed in Reid v. Donelan, –- F. Supp. 2d –-, 2014 WL 105026 (D. Mass. Jan. 9, 2014). In that case, the court concluded that § 1226(c) includes a “reasonableness” limit, and that detention beyond six-months without a hearing is presumptively unreasonable. Id. The court then certified a class of all § 1226(c) detainees in Massachusetts who have been or will be held beyond sixmonths. Reid v. Donelan, 297 F.R.D. 185 (D. Mass. 2014). The parties’ dispositive motions are currently under advisement.
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into immigration custody some five years later. Plaintiff Gustavo Ribeiro Ferreira was detained by immigration authorities three years after his release from criminal custody. Plaintiff Valbourn Sahidd Lawes was detained eight months after release, and Plaintiff Nhan Phung Vu was detained ten years after release. Plaintiff Cesar Chavarria Restrepo, the current class representative, was detained by immigration authorities nearly six years after his release from criminal custody. All of the named Plaintiffs lived openly -- that is, without any attempt at concealment -- and pursued entirely law-abiding lives following their release from criminal custody. Nevertheless, each was detained under § 1226(c). Under Defendants’ construction of this statute, each Plaintiff was facing indefinite detention without any opportunity ever to seek release under bail conditions. B. Procedural History
Plaintiff Gordon filed a petition for habeas corpus on August 8, 2013. (Dkt. No. 1.) At that time, he also filed a Motion for a Preliminary Injunction, (Dkt. No. 2), and a Motion for Class Certification, (Dkt. No. 16). In response,
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Defendants moved to dismiss the case. (Dkt. No. 13.) On September 11, 2013, the court stayed the class issue
pending a resolution of Plaintiff’s individual petition. (Dkt. No. 25.) After hearing argument on October 17, 2013, the court, on October 23, 2013, granted Plaintiff’s habeas petition, denied Defendants’ Motion to Dismiss, and denied without prejudice Plaintiff’s Motion for a Preliminary Injunction. Gordon v. Napolitano, No. 13-cv-30146, 2013 WL 5774843 (D. Mass. Oct. 23, 2013).2 The court issued a memorandum detailing the reasons for its order. Gordon v. Johnson, –- F. Supp. 2d –-, 2013 WL 6905352 (D. Mass. Dec. 31, 2013). As a result of the court’s ruling, Plaintiff Gordon was provided a bond hearing on November 6, 2013, and subsequently released on bail. (Dkt. No. 59 at p. 5.)
On November 8, 2013, Plaintiff filed a motion to amend the complaint to add three additional Plaintiffs, (Dkt. No. 55), which the court allowed on December 19, 2013, (Dkt. No. 69). Defendants were then ordered to provide each of the new individuals –- Plaintiffs Ferreira, Lawes, and Vu –-
2 On December 16, 2013, Defendants filed a Notice of Appeal challenging this decision. (Dkt. No. 63.)
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with individual hearings by March 28, 2014. (Dkt. No. 88.) Defendants timely complied.3 Plaintiffs Ferreira and Vu have now been released on bail conditions, and bond was also set for Plaintiff Lawes, who remains in custody.
After addressing the individual claims, the court heard an initial argument on the class certification question on December 19, 2013. Though it indicated that class treatment was likely appropriate, it concluded that the parties’ position on summary judgment would aid in the resolution of the class question. Accordingly, Plaintiffs filed their first Motion for Summary Judgment on January 24, 2014. (Dkt. No. 83.)
Shortly thereafter, Plaintiffs filed their second motion to amend the complaint seeking to add Plaintiff Cesar Chavarria Restrepo as a named Plaintiff. (Dkt. No. 93.) Recognizing that the amendment might be necessary to avoid mootness, the court allowed that motion on March 18, 2014. (Dkt. No. 97.) On that date, the court also heard argument on the class issue and on Plaintiffs’ Motion for Summary
3 Defendants filed a Notice of Appeal with respect to these three Plaintiffs on April 7, 2014. (Dkt. No. 117.)
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Judgment. It then took both matters under advisement. On March 21, 2014, the parties provided a joint
submission respecting the trajectory of the case. (Dkt. No. 100.) The parties agreed that if the court provided Plaintiff Chavarria relief simultaneously with its class decision, he would remain a suitable representative of the class. (Id.) This agreement suited the convenience of all parties, by avoiding the necessity of having continually to amend the complaint and file responsive pleadings as newly added parties obtained their remedies, to avoid mootness. Each party also indicated it would (and then did) re-file their dispositive motions as applied to the entire class. (Dkt. Nos. 105 & 107.)
On March 27, 2014, the court allowed Plaintiffs’ Motions for Class Certification, granted Plaintiff Chavarria’s individual habeas petition, and denied Defendants’ re-filed Motion to Dismiss. Gordon v. Johnson, –- F.R.D. –-, 2014 WL 1274059 (D. Mass. Mar. 27, 2014). Plaintiff Chavarria’s bond hearing occurred that same date, and he was subsequently released from custody.
As noted above, only three remaining issues require
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analysis. First, the court will detail the basis for its
class certification ruling. (Dkt. No. 114.) The discussion
will then turn to Plaintiffs’ two identical motions for
summary judgment. (Dkt. Nos. 83 & 107.) The final segment
of this memorandum will look at the question of the proper
remedial order.
III. DISCUSSION
A. Motion for Class Certification
On March 27, 2014, the court certified a class of
all aliens who are or will be detained in Massachusetts under 8 U.S.C. § 1226(c), whom the government alleges to be subject to a ground of removability as described in 8 U.S.C. § 1226(c)(1)(A)-(D), and who were not taken into immigration custody within forty-eight hours (or, if a weekend or holiday intervenes, within no more than five days) of release from the relevant predicate custody.
Gordon, 2014 WL 1274059 at *2. Class treatment is
appropriate because Plaintiffs satisfy the requirements of
Fed. R. Civ. P. 23.
1. Rule 23(a)
Fed. R. Civ. P. 23(a) includes four, well-known
elements: numerosity, commonality, typicality, and adequacy.
The burden is on the plaintiff to establish that each is
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satisfied, In re Eaton Vance Corp. Sec. Litig., 219 F.R.D. 38, 43 (D. Mass. 2003), and the court must ensure that each factor is met. Wal-Mart Stores v. Dukes, –- U.S. –-, 131 S.Ct. 2541, 2551 (2011).
The first Rule 23(a) requirement is that class be “so numerous that joinder of all its members is impracticable.” Rule 23(a)(1). Though no specific, numerical threshold exists, a class of forty or more is generally sufficient in the First Circuit. See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 173 (D. Mass. 2012). That threshold, however, is relaxed when a party seeks only declaratory or injunctive relief. McGuin v. Sec’y of Health & Human Servs., 817 F.3d 161, 167 (1st Cir. 1987).
Several facts suggest that the class size here is well over that forty-person minimum. First, Plaintiffs’ counsel met with twenty-nine detainees at the Franklin County Jail and House of Corrections. (Decl. of Elizabeth Badger, Dkt. No. 103, Ex. 5.) They found that roughly 28% were members of the proposed class. If one extrapolates that number, and uses the low end of the range of individuals detained by ICE under § 1226(c) in Massachusetts –- a number between 178 and
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229 -- roughly forty-nine individuals populate the class. (Decl. of Michael Tan Ex. C, Dkt. No. 103, Ex. 2.)
Second, Plaintiffs presented the court with a list of more than twenty current or recent cases in Massachusetts where individuals were held under § 1226(c) but were not detained promptly upon release. (Id.) Counsel discovered these individuals through minimal interviews and contact with detainees, and the number likely represents just a fraction of the detained population.
Finally, absent class treatment, the number will simply continue to grow. Defendants have shown no inclination to alter their misconstruction of the law, and future members will continue to expand the class. This is particularly true given ICE’s emphasis on detaining indefinitely all aliens in the community who were previously convicted of a predicate crime, without ever giving them the opportunity to argue for bail, regardless of how old their criminal conviction may be or how long these individuals may have been holding jobs and living crime-free in this country. (Dkt. No. 103, Ex. 3.)
More importantly, even if the number hovered slightly
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below the forty person threshold, joinder would still be impracticable in this case, and class certification would be appropriate. Plaintiffs are dispersed through five facilities in Massachusetts and are largely unknown –indeed, as a practical matter, unknowable –- to Plaintiffs’ counsel. The class, moreover, is continuously changing shape as individuals leave the class when their immigration cases conclude and as new members join upon their detention. Such considerations make joinder nearly impossible.
Rule 23(a) also requires a question of law or fact common to the class. Rule 23(a)(2). The key to this analysis is that the truth or falsity of a question will resolve the validity of each class member’s claim in a single stroke. Dukes, 131 S.Ct. at 2551.
Defendants argue, as they do with respect to typicality and adequacy, that the definition of “when . . . released” differs depending on the specific facts of an individual’s case. That is, as Defendants would have it, the length of time and the quality of an individual’s re-integration into his or her community before his or her detention would affect the analysis of whether an alien has been detained
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“when . . . released.” In other words, apparently, if any individual lived peaceably and constructively in the community, the Defendants’ calculation of the reasonable time to take him into custody following his release from criminal confinement might be different from the calculation where an individual got into trouble or posed some kind of threat.
This argument is, first of all, wobbly as a matter of substance. Defendants insist that under 1226(c) they not only can, but must, take any alien who is released from criminal custody following conviction of a predicate crime into custody at any time, even many years after release, and hold him or her without bail. This power, Defendants say, adheres whether the released alien is behaving as the purest saint or the most despicable sinner. Individual circumstances, Defendants contend, do not matter.
Moreover, Defendants’ argument entirely misconstrues the point of this litigation by confusing the issue of whether an alien is entitled, at some point, to a bail hearing with the issue of what the Immigration Judge’s decision might take into consideration once the bail hearing
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occurs. An alien who is misbehaving in the community may get his bail hearing, but he may very well not be released. The common question raised by this litigation is whether the bail hearing will ever occur in the first place. After that, Plaintiffs recognize that the Immigration Judge’s decision on the substantive question of release will inevitably address the varying situations of the aliens. The litigation is about the first question, not the second.
In sum, even assuming Defendants’ interpretation of 1226(c) was correct, the case still presents a single question of statutory interpretation. That alone creates a common question of law sufficient to satisfy Rule 23. Defendants’ own memoranda effectively concede this. See, e.g., (Defs.’ mem. in Support of Mot. to Dismiss at 10, Dkt. No. 21)(“Petitioners’ challenge to their detention is premised on one theory - that section 1226(c) does not apply to them because ICE did not immediately detain them on release from custody.”); (Defs.’ Reply Mem. in Support of Mot. to Dismiss & Opp. to Mot. for Prelim. Inj. at 2, Dkt. No. 37)(“Respondents respectfully assert that Mr. Gordon’s request for injunctive relief is inappropriate in light of
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the fact that he is seeking habeas relief . . . based on a question of law where no facts are in dispute.”)
More importantly, the court’s view of § 1226(c) settles the case for the entire class. In deciding the merits, the court concluded that the phrase “when . . . released” is not ambiguous and signifies immediacy –- a requirement that is certainly not satisfied when a detainee is released into society for more than 48 hours (or longer when a weekend intervenes) before ICE takes action. Since the court viewed the “when . . . released” language as limiting the class of individuals subject to § 1226(c), and since every class member here falls outside of that gap, that common interpretation resolves each member’s claims. Cf. Comcast Corp. v. Behrend, –- U.S. –-, 133 S.Ct. 1426, 1432 (2013)(noting the permissibility of examining the merits at the class certification stage).
The third Rule 23(a) requirement is that the claims of the class representative be typical of the other class members. Rule 23(a)(2). In addition to reiterating their prior argument, Defendants contend that factual differences among class members –- including different criminal
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histories or citizenship statuses –- defeat typicality. The problem with this argument, as the court noted
above, is that it conflates the right to a bond hearing with the outcome of that hearing. See Reid v. Donelan, –- F.R.D. –-, 2014 WL 545144 at *4 (D. Mass. Feb. 10, 2014). The factual differences, if relevant at all, speak to issues that may result in different outcomes at the bail hearings. For instance, an alien may be detained because his or her criminal record demonstrates that he or she is a public safety risk. The differences do not, however, speak to whether each class member is entitled to a hearing in the first instance. Instead, all members present the same claim based on an identical legal theory.
The final Rule 23(a) requirement, the adequacy of the representative, has two components. First, the plaintiff must show that “the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced and able to vigorously conduct the proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985).
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Defendants raise two arguments challenging the named Plaintiffs’ status as adequate representatives. First, they point out that the class representatives are all lawful, permanent residents, while the class definition includes all “aliens,” including some who might have some other technical immigration status. Second, Defendants reiterate their argument that each case depends on factual differences –such as the length of time following release from criminal confinement before apprehension and detention by ICE –- thus rendering class treatment inappropriate.
Defendants’ first argument offers a distinction without a difference. It is impossible to conceive of any way in which the situation of a lawful permanent alien would, in itself, differ to any significant degree from the situation of any other member of the class for purposes of the analysis of § 1226(c). Defendants fail to suggest any rationale by which a class member’s technical status would make any difference for purposes of this litigation.
Defendants’ second objection has already been addressed. For the reasons discussed above, it is without merit.
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As for the second Rule 23(a)(4) requirement, Plaintiffs’ counsel easily jumps over the hurdle. Class counsel have considerable experience in the area of immigration law generally (and mandatory detention in particular), have already devoted considerable resources into the case, and are willing to ensure that all members will be adequately represented. (Pls’ Mem. in Supp. of Class Cert. at 15, Dkt. No. 103.) They thus satisfy this element.4
Ultimately then, Plaintiffs have satisfied each element of Rule 23(a). It is therefore appropriate to turn to Rule 23(b).
2. Rule 23(b)(2) In addition to satisfying Rule 23(a), Plaintiffs must establish that the class fits into one of the three categories of Rule 23(b). Here, the most applicable is Rule 23(b)(2), or an “injunctive class.” To move forward under that section, Plaintiffs must show that “the party opposing the class has acted or refused to act on grounds generally
4 For similar reasons, Plaintiffs’ counsel satisfies Rule 23(g). See Connor B ex. rel. Vigurs v. Patrick, 272 F.R.D. 288, 297 (D. Mass. 2011).
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applicable to the class, making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole.” Rule 23(b)(2).
Defendants do not object to Plaintiffs’ argument on this point; this is precisely the type of case that this category was designed for. See Connor B., 272 F.R.D. at 297-98. Indeed, challenges to the interpretation of an immigration statute are typical Rule 23(b)(2) classes. See, e.g., Campos v. I.N.S., 188 F.R.D. 656, 659 (S.D. Fla. 1999); Vargas v. Meese, 119 F.R.D. 291 (D.D.C. 1987). Plaintiffs seek only injunctive and declaratory relief, nothing more. No issue of damages will muddle the analysis. Dukes, 131 S.Ct. at 2557. Instead, a single injunction and declaratory judgment –- one ordered below –- will provide relief to the entire class. The class therefore also satisfies Rule 23(b).
3. Contours of the Class Though the court previously explained why it was limiting the class to individuals not detained within fortyeight hours of release from criminal custody, it is worth reiterating the basis for this decision. Gordon, 2014 WL
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1274059 at *2. The 48-hour limit (or five-day limit when a two- or three-day weekend intervenes) recognizes the practical problems Defendants noted that they would experience if the court held that § 1226(c) could only be invoked when there was a direct immediate transfer of an alien from criminal to immigration custody. (Defs’ Opp. to Mot. for Sum. J., Dkt. No. 89.) Plaintiffs initially argued that a delay of a few hours, or even less, might violate the statute’s requirement that an alien be detained when released from criminal custody. In establishing a more deferential temporal boundary to the defined class, the court is not intending to say that those detained within forty-eight hours are necessarily barred from any remedy. Indeed, at least one other court has recently certified a class including those individuals as well. See Khoury v. Asher, –- F. Supp. 2d –-, 2014 WL 954920 at *12-13 (W.D. Wash. March 11, 2014). All the court intends to suggest is that those aliens, if they are entitled to relief, must obtain it on an individual basis.5
5 Given that a great majority of those not immediately detained upon release will be detained after forty-eight hours, it is clear that this more forgiving definition of
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The court is satisfied that class resolution is appropriate here and therefore allowed Plaintiffs’ motions for class certification.6 B. Motion for Summary Judgment
Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences from those facts in that party’s favor. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir. 2004). In the absence of a dispute over a genuine issue of material fact, summary judgment is appropriate. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997).
Though Defendants preserve their objection to what they see as an incorrect interpretation of § 1226(c) –- indeed, they are appealing it -– they acknowledge that under the law
the class will not affect the numerosity analysis. 6 If the court had not chosen the road more traveled,
Rule 23, it still could, and would, have certified this class as a representative habeas action under U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974), for the same reasons discussed.
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of the case no genuine dispute of fact exists. See Arizona v. California, 460 U.S. 605, 618 (1983). Instead, Plaintiffs are entitled to judgment as a matter of law because the court’s prior interpretation of § 1226(c) –- one it reaffirms today –- construed the phrase “when . . . released” as containing an immediacy requirement, limiting the class of individuals subject to mandatory detention without a right to a bail hearing. To reach that conclusion, the court engaged in a Chevron analysis to determine whether it should defer to the Board of Immigration Appeal’s (“BIA”) decision in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). See Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984).
First, it was necessary to examine the plain meaning of the statute, the congressional intent underlying the law, and the structure of the statute. Gordon, 2013 WL 6905352 at *4-7. All three made manifest the fact that Congress only intended to subject a limited class of aliens to nobail detention –- those that were detained “when . . . released.” Given this, no deference to the BIA was appropriate.
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Despite the conclusion at step one, the analysis proceeded to step two of Chevron. There, even if the language were ambiguous, deference would still not be proper. Id. at *8-9. First, the BIA’s interpretation unreasonably allowed for no-bail detention at any point after release –- ten, twenty, or even thirty years after criminal confinement and the resumption of a law-abiding life. Second, the interpretation was capricious and provided Defendants with unconstrained discretion that Congress never intended to bestow.
Finally, the court considered the Third and Fourth Circuit’s opinions respecting the “loss of authority” line of cases. Id. at *9-10, citing Sylvain v. Att’y Gen. of U.S., 714 F.3d 150 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012). Those courts reasoned that any temporal limitation on § 1226(c) would improperly penalize the government for its inaction. According to these authorities, the phrase “when . . . released” could not be construed as containing any time limitation, however infinite, since the violation of this time limit would disable immigration authorities from detaining an alien
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without right to a bail hearing. This court disagreed, concluding that the relevant grant of authority is the power to detain –- power with its genesis in § 1226(a). Nothing in this court’s construction of 1226(c) would inhibit Defendants’ right to detain any alien, only their right to detain without a bail hearing. Sub-section (c), rather than providing an independent grant of the power to detain, merely provides a limited exception to the broader authority set forth under § 1226(a). The “loss of authority” cases are thus inapplicable to the analysis here.
After carefully re-weighing its rationale, this court concludes that its construction of § 1226(c) is not only the most sensible way to interpret the phrase “when . . . released” but most accurately reflects what must have been the Congressional intent. Since that interpretation drives the analysis of the issues raised by this case, Plaintiffs are entitled to judgment as a matter of law. C. Relief
Given the summary judgment ruling, the question of what relief Plaintiffs are entitled to, if any, moves into the center ring. Here, Plaintiffs request both injunctive and
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declaratory relief. Defendants insist that, if any equitable relief is provided at all, only a declaratory judgment is permitted. As noted above, the issue of proper relief raises three questions: Does the court possess the authority to issue injunctive and declaratory class-wide relief? Is it appropriate in this case? If so, what should the relief look like?
1. Can the Court Order Class-Wide Relief? Defendants argue that 8 U.S.C. § 1252(f)(1) bars any class-wide injunction. That statute states that no court “shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1231] . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” In Arevalo v. Ashcroft, the First Circuit defined two of the key terms of that section. 344 F.3d 1, 7 (1st Cir. 2003). It found that “enjoin” constitutes permanent injunctive relief and that “restrain” signifies temporary relief. Id. Critically, the Court of Appeals did not tackle the phrase “the operation of.”
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In this case, the court’s injunction will not prevent the law from operating in any way, but instead would simply force Defendants to comply with the statute. The purposes underlying § 1252(f)(1) and associated case law justify this distinction.
When Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div. C, § 306, 110 Stat. 3009, it sought to prevent courts from enjoining the lawful procedures established by Congress for removing non-citizens. H.R. Rep. No. 104-469, pt. 1, 1996 WL 168955 at 161 (1996). The goal, in essence, was to prevent a court from interfering with the government’s ability to remove aliens. For instance, if the court were to enjoin all removals by declaring a specific part of the immigration code improper, class relief would not be available. That purpose militates against the application of § 1252(f)(1) here because the court need not prohibit the operation of any part of the law to correct the government’s incorrect application of it.
Case law interpreting § 1252(f)(1) has also outlined this distinction. The Ninth Circuit in Rodriguez v. Hayes,
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591 F.3d 1105 (9th Cir. 2010), said it best. “Where . . . a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of [the statute], and § 1252(f)(1) therefore is not implicated.” Id. at 1120 (internal quotations and citations omitted); See also Gayle v. Johnson, –- F. Supp. 2d –-, 2014 WL 1044074 at *19 (D.N.J. Mar. 14, 2014)(“In focusing on the nature of Plaintiffs’ challenge –- which, again, is based on the claim that the Government’s current mandatory detention procedures violate the INA –- it does not appear that § 1252(f)(1) precludes Plaintiffs from pursuing injunctive relief.”)7
Here, the court will be ordering Defendants to apply § 1226(a) and its accompanying regulations to members of the class, as is required by the statute. Since an injunction will therefore not interfere with the operation of the law, class-wide relief is available.8
7 Class-wide declaratory relief is also not proscribed under these conditions. See Reid, 2014 WL 545144 at *8.
8 At oral argument, Defendants appeared to concede, at least with respect to declaratory relief, that the court could issue a class-wide order finding § 1226(a) applicable to the class without running afoul of § 1252(f)(1).
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2. Is Equitable Relief Appropriate? Though equitable relief may be permissible, it is also important to examine whether it is necessary. To obtain declaratory relief, Plaintiffs must show that it “will serve the interests of the litigants or the public.” Metro. Prop. & Liab. Ins. Co. v. Kirkwood, 729 F.2d 61, 62 (1st Cir. 1984). An injunction is appropriate where a plaintiff, in addition to succeeding on the merits, establishes: (1) irreparable harm; (2) the absence of an adequate remedy at law; (3) a favorable balance of hardship; and (4) a vindication of (or at least no offense to) the public interest. Esso Standard Oil v. Lopez-Freyes, 522 F.3d 136, 148 (1st Cir. 2008) citing eBay v. MercExchange, LLC, 547 U.S. 388, 391 (2006). No serious dispute exists that, if the court finds in Plaintiffs’ favor, declaratory relief can issue. Given that concession, and that a declaratory judgment is in Plaintiffs’ and the public’s interest, as discussed below, that remedy will be provided. Plaintiffs have also satisfied their burden for obtaining injunctive relief. First, Plaintiffs are
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suffering, and will continue to suffer, irreparable harm absent a permanent injunction. Each day Plaintiffs remain in detention without an opportunity to seek release on bail is time the class members cannot recover. See McGuinness v. Pepe, 150 F. Supp. 2d 227, 230 n.8 (D. Mass. 2001). Defendants have wrongfully deprived all class members of an opportunity they were statutorily entitled to the moment they were detained. See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013)(noting that class members’ unnecessary detention constituted irreparable harm.) A binding order is the only guarantee that this deprivation will be rectified.9 The balance of the equities also favors Plaintiffs, and an injunction is in the public interest. Plaintiffs have a significant liberty interest in (and statutory right to) the opportunity to argue for their conditional release. Moreover, it is in the public’s interest generally for statutes to be implemented consistent with the plain language used to embody them, and in the way Congress intended.
9 Given that this harm is not compensable by monetary damages, obviously no adequate remedy at law exists.
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It is important to emphasize that this court’s order leaves Defendants’ and the public’s interests well protected. Defendants’ main concern is ensuring public safety and processing the orderly removal of certain aliens. An injunction will not require a single class member to be released from custody but will merely provide them the opportunity to argue for release. The Immigration Judge presiding at the bail hearing will retain full power to detain any alien who presents a flight risk or danger to the public or any person. See Castaneda v. Souza, 952 F. Supp. 2d 307, 320-21 (D. Mass. 2013)(stating that the government would not be prevented “from detaining even a single criminal alien”). It is also worth noting that the burden on the government to hold these bail hearings –- which are held regularly under 1226(a) –- is minimal. Reid v. Donelan, –- F. Supp. 2d –-, 2014 WL 105026 (D. Mass. Jan. 9, 2014).10 Accordingly, the harm to Plaintiffs here vastly outweighs any incidental burden to Defendants.
10 As the Ninth Circuit has made clear, “even if the government faced severe logistical difficulties in implementing the order,” it “cannot suffer harm from an injunction that merely ends an unlawful practice.” Robbins, 715 F.3d at 1145-46.
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Therefore, since the relevant factors all conclusively suggest that a permanent injunction is necessary, the court will permanently enjoin Defendants’ wrongful application of § 1226(c) to the class.
3. The Substance of the Relief The parties present competing proposed orders for the court’s consideration. (Dkt. Nos. 83 & 89.) Four critical differences separate the two. First, Defendants seek to limit any remedy to current class members. However, they fail to provide any sensible rationale for this limitation. Indeed, such a restriction would be inappropriate as it would allow Defendants to apply their erroneous interpretation of § 1226(c) to future class members.
Second, the parties dispute how the hearings should unfold: Plaintiffs seek an order that places the burden on the government to schedule and provide bail hearings automatically, and Defendants believe that the regulations governing bail determinations under § 1226(a) should apply. Two considerations support Defendants’ position.
Initially, any specific mandate as to how or when the bail hearings should occur has the potential to run up
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against the proscription in § 1252(f)(1).11 Although the court certainly has jurisdiction to order Defendants to apply § 1226(a) to the class –- as this is required by the statute itself –- it is not self-evident that it has the authority to tinker with the specifics called for by that section of the law. In limiting an order to the procedures currently available under § 1226(a) and its associated regulations, the court can provide class members with the process they are entitled to while simultaneously ensuring that it does not exceed any jurisdictional or statutory boundary.
More fundamentally, Plaintiffs request a remedy that is superior to what § 1226(a) detainees are entitled to. Although the court has its concerns about the procedures used to effectuate the requirements of § 1226(a) –specifically the time between detention and a bail hearing as well as the ability of a detainee to ensure his or her request for a hearing makes its way to an Immigration
11 As discussed above, that section states that no court “shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1231].”
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official –- as a matter of fairness, class members in this case should not receive more protection than their 1226(a) counterparts who, it should be noted, have not committed any § 1226(c) predicate offense. The court does recognize that the Ninth Circuit provided additional safeguards in a related § 1226(c) matter, Robbins, 715 F.3d at 1131, but believes that the procedures of § 1226(a) provide the reasonably effective remedy class members in this case are entitled to without overlaying a new remedial structure that only 1226(c) aliens would be eligible for.
The parties also disagree about the length of time the government should have to conduct the bail determinations. Plaintiffs argue that the government should have thirty days to provide hearings to all current class members. Defendants suggest ninety days. The court, however, need not get into such details because, once this court’s order issues, all class members are to be treated as § 1226(a) detainees and enjoy immediate access to the process that this section –- and its accompanying regulations –- provides them. It should be emphasized that it is not burdensome to expect the government to complete initial determinations,
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and provide bail hearings if requested, to every current class member within ninety days at the most. This is particularly true in light of the fact that Defendants have expeditiously provided bail hearings to the named Plaintiffs, have conducted a screening of the class and have a sense of who is entitled to a hearing, and often hold the hearings as part of a master calendar session on one day.12
Plaintiffs’ final request is that Defendants provide class counsel with information about the class. They also request that Defendants file a report with the court after the bail determinations are conducted. Plaintiffs argue that provision of this information is essential to ensure that all eligible individuals receive the remedy they are entitled to. Defendants include no such requirement in their proposed order. Since disclosure of this information is essential to allow Plaintiffs and the court to monitor whether Defendants have complied with the court order, Plaintiffs’ suggestion on this point will be adopted.
IV. CONCLUSION
12 The court may reconsider this part of its order if the government fails to comply swiftly with the remedy set out below.
-34-

An individual’s right to due process is not eradicated simply because he or she has been convicted of a crime at some point in his or her life. Congress, recognizing this, only mandated mandatory immigration detention without bail in narrow circumstances: where a prompt transfer from criminal to immigration custody was essential to protect the public and ensure that the specified alien would be available for ultimate removal. When the government does not detain an alien promptly upon release from criminal custody, the rationale for mandatory detention dissolves. When delay beyond two to five days occurs, the individual –one who has already returned to society –- is entitled to the opportunity to argue for his or her conditional release. Since the phrase “when . . . released” simply cannot mean “whenever immigration authorities get around to it, even decades later,” the court’s construction of the statute reflects the most likely expression of Congress’s intent
Accordingly, the court hereby ALLOWS Plaintiffs’ Motions for Summary Judgment. (Dkt. Nos. 83 & 107.) The court DECLARES as follows:
• As to every class member, the mandatory detention provision, 8 U.S.C. § 1226(c), applies only to -35-

aliens detained by the Department of Homeland Security (“DHS”) within forty-eight hours of release from criminal custody, or if a weekend or holiday intervenes, within no more than five days.
• As to every class member, an alien who is not taken into immigration custody within forty-eight hours of release from the relevant prior non-DHS custody (or if a weekend or holiday intervenes, within no more than five days) is subject to 8 U.S.C. § 1226(a), and is entitled to a bond hearing.
In accordance with that finding, the court hereby
ORDERS the following:
• Defendants shall immediately cease and desist subjecting all current and future class members –that is, aliens not detained within forty-eight hours of release from the relevant prior non-DHS custody (or if a weekend or holiday intervenes, within no more than five days) -- to mandatory detention under 8 U.S.C. § 1226(c).
• Defendants shall immediately determine the custody of every current class member under 8 U.S.C. § 1226(a) and timely provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. § 1003.19 & 1236.1(d).
• Defendants shall determine the custody of every future class member under 8 U.S.C. 1226(a) and provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. § 1003.19 & 1236.1(d).
• On or before June 5, 2014, Defendants shall provide class counsel with a list of identified class members, including their names and alien numbers, and the facility in which they are detained.
-36-

• On or before July 21, 2014, Defendants shall submit to the Court a report detailing the following: • any custody determinations made for Plaintiffs and class members, including the dates they were made, the determination, and, if applicable, whether the individual petitioned for a bail redetermination in front of an Immigration Judge • any bond hearings held for Plaintiffs and class members, including the dates they were held and the outcome of those hearings, including the amount of any bond set; and, • the process and criteria by which class members have been identified.
The clerk shall set this matter for a status conference on September 15, 2014, at 3:00 p.m., to review Defendants’ compliance with this order, and to discuss entry of final judgment.
It is So Ordered. /s/ Michael A. Ponsor
MICHAEL A. PONSOR U. S. District Judge
-37-

 
 Gordon v. Johnson, 991 F.Supp.2d 258 (2013)

991 F.Supp.2d 258 United States District Court,
D. Massachusetts.
Clayton Richard GORDON, on behalf of himself and others similarly situated, Plaintiff/Petitioner
v. Jeh Charles JOHNSON, Secretary of Homeland Security; Eric H. Holder, Jr., Attorney General of
the U.S.; John Sandweg, Acting Director, Immigration and Customs Enforcement; Sean Gallagher, Acting Director, Immigration and Customs Enforcement; Christopher Donelan, Sheriff of Franklin County; Michael G. Bellotti, Sheriff of Norfolk County; Steven W. Tompkins, Sheriff of Suffolk County; Thomas M. Hodgson,
Sheriff of Bristol County; and, Joseph D. McDonald, Jr., Sheriff of Plymouth County,
Defendants/Respondents.
C.A. No. 13–cv–30146–MAP. | Dec. 31, 2013.
Synopsis Background: Alien, a la wful p ermanent r esident who was s ubjected t o m andatory detention pe nding r emoval five years af ter his ar rest f or n arcotics p ossession, petitioned for a writ of habeas c orpus on his o wn be half and on behalf o f a class o f similarly situated individuals, seeking a n i ndividualized b ond he aring t o c hallenge h is ongoing detention. Government moved to dismiss.
Holdings: The District Court, Ponsor, J., held that:
[1] phrase “when t he al ien i s r eleased” in s tatute authorizing mandatory detention of criminal aliens meant “at the time of release”, and
[2] petitioner was e ntitled to b ond h earing f or consideration of the possibility of his release on conditions.
Petition allowed.
Attorneys and Law Firms
*259 Adriana L afaille, M atthew Segal, A merican C ivil Liberties Union, Boston, MA, *260 Elizabeth A. Badger, Lutheran S ocial S ervices, W orcester, M A, Eunice L ee,

Michael Tan, American Civil Liberties Union Federation, San Francisco, CA, Judy Rabinovitz, American Civil Liberties Union, New York, NY, for Plaintiff/Petitioner.
Aram A. G avoor, U nited S tates D epartment o f J ustice, Washington, D C, Karen L. G oodwin, U nited S tates Attorney’s Office, S pringfield, M A, f or Defendants/Respondents.
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S PETITION FOR WRIT OF HABEAS
CORPUS, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION, and DEFENDANTS’
MOTION TO DISMISS
(Dkt. No. 1, 2 & 13)
PONSOR, District Judge.
I. INTRODUCTION
Plaintiff, a lawful p ermanent U .S. r esident he ld b y t he government p ursuant t o 8 U .S.C. § 1 226(c), b rought a petition for writ of habeas corpus on behalf of himself and those similarly situated. (Dkt. No. 1.) He sought an individualized bond hearing to challenge his ongoing detention by immigration authorities. Defendants are: Jeh Charles J ohnson, S ecretary o f H omeland S ecurity; E ric Holder, Attorney General; John Sandweg, Acting Director of I mmigrations a nd C ustoms E nforcement (IC E); S ean Gallagher, Acting Field Office Director for the New England F ield O ffice o f I CE; C hristopher D onelan, Sheriff o f Franklin C ounty; Michael B ellotti, Sheriff o f Norfolk C ounty; S teven T ompkins, S heriff o f S uffolk County; Thomas Hodgson, Sheriff of Bristol County; and Joseph M cDonald, J r., S heriff o f P lymouth C ounty. I n addition to his petition for habeas corpus, Plaintiff filed a Motion f or a P reliminary Injunction. ( Dkt. N o. 2 .) Defendants also submitted a Motion to Dismiss. (Dkt. No. 13.)
On O ctober 23 , 2 013, 2013 W L 577 4843, t his c ourt granted P laintiff’s i ndividual h abeas p etition, d enied without p rejudice Plaintiff’s M otion f or a Preliminary Injunction, a nd d enied D efendants’ M otion to D ismiss.1 This memorandum provides a more detailed explanation of the court’s reasoning.
1

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)

1

Defendants a rgue th at d ismissal a s to a ll o f th e

Defendants ex cept D efendant D onelan i s r equired

because h abeas r elief m ust “be directed t o t he p erson

having c ustody of t he pe rson d etained.” 28 U.S.C. §

2243. I n cases o f p hysical co nfinement, t he i mmediate

custodian is the proper respondent. Rumsfeld v. Padilla,

542 U .S. 4 26, 4 39, 124 S .Ct. 2711, 1 59 L .Ed.2d 513

(2004). G iven t he cl ass-wide a llegations, h owever,

dismissal at this point is inappropriate. Furthermore, the

“immediate cu stodian r ule” might not apply where the

relief s ought i s a bond hearing an d n ot i mmediate

release. See Bourguignon v . M acDonald, 667

F.Supp.2d 175, 179–180 (D.Mass.2009).

II. BACKGROUND2

2

There i s no di spute a s t o t he f acts, a nd t he q uestion

before t he co urt i s o ne p urely o f l aw. The f acts ar e

drawn from Plaintiff’s complaint. (Dkt. No. 1.)

As t he f acts o f this cas e ca n o nly b e understood i n t he context o f t he s tatute, a b rief d iscussion o f th e la w is necessary before laying out the factual background.

A. Statutory Framework Section 1226 of T itle 8 governs t he d etention o f noncitizens d uring i mmigration r emoval p roceedings. Sub-section ( a) p rovides d iscretionary a uthority to t he government to take an alien into custody while a decision on r emoval i s pe nding. A non-citizen d etained u nder § 1226(a) is entitled *261 to an individualized bond hearing to d etermine whether r elease p ending r emoval i s appropriate. 8 C .F.R. § § 1 003.19 & 1236.1(d); Matter o f Guerra, 24 I . & N . D ec. 3 7, 3 7–38 ( BIA 2006). Sub-section (a) provides:
On a warrant issued b y the Attorney G eneral, a n a lien may be a rrested an d detained p ending a d ecision o n whether t he al ien i s t o b e r emoved from the United States. Except as pr ovided i n s ubsection ( c) of t his section a nd pe nding s uch de cision, t he A ttorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bon d of a t l east $ 1,500 with s ecurity a pproved by, and containing conditions prescribed by, the Attorney General, or

(B) conditional parole; but
(3) m ay n ot pr ovide t he a lien with work authorization (including an “employment authorized” endorsement or other a ppropriate w ork permit), u nless t he a lien is la wfully a dmitted for permanent r esidence o r o therwise would ( without regard t o r emoval pr oceedings) be pr ovided s uch authorization.
8 U.S.C. § 1226(a) (emphasis added).
Sub-section ( c) o f t he la w e liminates this d iscretion with respect t o cer tain n on-citizens. T his p rovision r equires detention pending removal, and, unlike sub-section (a), it does n ot e xplicitly pr ovide f or i ndividualized bon d hearings. Sub-section (c) reads as follows:
(1) Custody
The A ttorney G eneral shall take in to c ustody a ny alien who—
(A) is inadmissible by reason of having committed any o ffense co vered in section 1182( a)(2) of t his title,
(B) i s deportable by r eason of h aving c ommitted any o ffense c overed i n 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 o n t he b asis o f a n o ffense for which the alien has b een s entenced t o a t erm o f 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, a nd without r egard t o w hether t he a lien may b e ar rested o r i mprisoned ag ain for t he s ame 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 p otential witness, a p erson cooperating with an investigation into major criminal activity, o r an immediate f amily member o r cl ose associate o f a witness, p otential witness, o r p erson
2

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)
cooperating with such an investigation, and the alien satisfies the Attorney G eneral that the a lien will not pose a da nger t o t he s afety of ot her pe rsons or of property an d i s l ikely t o ap pear f or an y s cheduled proceeding. A decision relating to such release shall take p lace i n acco rdance with a p rocedure t hat considers t he s everity o f t he o ffense c ommitted b y the alien.
8 U.S.C. § 1226(c) (emphasis added).

B. Factual Background Plaintiff Clayton R ichard G ordon, a n ative o f J amaica, arrived i n t he U .S. i n 1982 *262 at ag e six a s a l awful permanent resident. Plaintiff joined the National Guard in 1994 and then served i n active duty with the U.S. Army. He was honorably discharged in 1999.
In 2008, Plaintiff was arrested after police found cocaine in his home. Within one day of his arrest, he was released from c ustody. P laintiff p led g uilty i n s tate c ourt to a charge o f p ossession o f n arcotics with i ntent to s ell, for which he r eceived a s even-year s uspended s entence an d three years o f p robation. H e s uccessfully co mpleted h is probation without incident.
Since t hat a rrest, P laintiff has r e-established himself a s a productive member of society. He met his current fiancee around 2008, a nd t he c ouple h ad a s on i n 2010. They purchased a home t ogether i n B loomfield, C onnecticut. Plaintiff developed a s uccessful business and has worked on a p roject to open a h alfway house for women released from incarceration.
On J une 2 0, 20 13, w hile d riving t o work, P laintiff was unexpectedly stopped by I CE agents. H e was taken into ICE custody and detained at the Franklin County Jail and House o f C orrection i n G reenfield, Massachusetts. Defendants, relying on the 2008 criminal conviction, invoked t he mandatory pr ovisions of § 1226( c) to d etain Plaintiff without t he o pportunity for a n in dividualized bond hearing.
Plaintiff filed t his p etition for W rit o f H abeas Corpus o n his o wn b ehalf an d o n b ehalf o f a cl ass o f s imilarly situated i ndividuals, s eeking a n i ndividualized b ond hearing. H e al so f iled a Mo tion f or a P reliminary Injunction.3 Defendants moved to dismiss the case.

3

Plaintiff a lso f iled a M otion t o Certify a C lass, ( Dkt.

No. 16), which is pending before the court.

On O ctober 23, 2013, t he c ourt g ranted P laintiff’s individual h abeas p etition, d enied without p rejudice Plaintiff’s M otion f or a P reliminary I njunction, a nd denied Defendants’ Motion to Dismiss.4

4

The history of the case subsequent to the court’s rulings

is s traightforward. O n N ovember 1, 2 013, D efendants

notified t he c ourt that Mr. G ordon w as be ing he ld

pursuant t o § 12 26(a), an d a bond h earing h ad b een

scheduled. ( Dkt. N o. 51.) A hearing w as he ld o n

November 6, 2013, and bond was set at $25,000. (Dkt.

No. 59.) On November 18, 2013, Plaintiff posted bond

and was released from custody. (Id.) Plaintiff has since

amended his complaint to include additional Plaintiffs.

(Dkt. No. 72.)

III. DISCUSSION
In th eir submissions a nd a t o ral a rgument, b oth p arties urged t he c ourt t o r ule o n t he u nderlying merits o f th e habeas petition. The parties agreed that the case hinged on the i nterpretation o f t he p hrase “when t he a lien i s released” in § 1226(c)(1).
Defendants contend t hat the phrase indicates the time at which it can begin to act, rather than setting the time at which it must act. D efendants r aise t wo ar guments i n support of this interpretation. First, the court must defer to the B oard of I mmigration Appeal’s ( BIA) de cision i n Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), because the statute—specifically, the word “when”—is ambiguous. The BIA’s reading is a permissive construction because it is consistent with the p lain language and purpose of the statute. D eference i s t herefore r equired u nder Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Second, D efendants i nvoke favorable T hird an d F ourth Circuit decisions relying on the “loss of authority” line of cases.5 *263 They s uggest th at a dopting P laintiff’s interpretation i mpermissibly imposes a s anction o n th e government for failing to act in a specific, limited period of time.

5

Defense co unsel s uggested at o ral ar gument t hat t he

“loss of authority” principle can be analyzed as part of

the Chevron analysis or as an independent justification

for the government’s interpretation of its authority. (Tr.

of M ot. H r’g, a t 27, D kt. N o. 48. ) A lthough e ach

analysis yields t he s ame r esult, t he ar guments w ill b e

3

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)

considered independently.
Defendants’ ar guments ar e u npersuasive. T he p lain language of this statute s ets forth an immediacy requirement. F urthermore, t he p urposes und erlying t he section an d t he s tructure o f § 12 26 amply s upport t hat reading. T hus, no d eference t o t he B IA o pinion i s appropriate.
Even if there were an ambiguity in the statutory language, the BIA’s argument goes too far. Its interpretation fails to recognize any temporal l imitation on t he government’s ability to a ct. I t a lso s hifts u nintended d iscretion to t he executive branch, yielding arbitrary and capricious results, of which this case provides a prime example.
Finally, t he “loss of authority” cases do n ot apply to this statute. U nder P laintiff’s proposed in terpretation o f 1226(c) the government does not lose any power, since it still has the full authority to detain aliens pending removal under § 1226(a). Indeed, it is crucial to emphasize what is, and what is not, at issue in this case. The question before the court is not whether a convicted alien who is not taken into ICE custody “when released” from his criminal detention s hould be f orever f ree f rom a ny r isk of I CE detention. T he m uch n arrower q uestion i s whether an alien in this position is entitled to a hearing at which an Immigration J udge c an c onsider t he possibility of releasing t he a lien o n c onditions. O bviously, i n many cases the upshot of this hearing will be a prompt denial of conditions, and immediate detention. The pivotal question, however, is whether any hearing will ever take place once a p reviously co nvicted al ien i s t aken i nto cu stody at any time after his release from criminal detention.
A. Chevron Deference [1] The co urt m ust ap ply a t wo-step Chevron analysis t o determine whether d eference i s d ue t o an ag ency’s interpretation of its governing statute. Chevron, 467 U.S. at 842 –43, 104 S .Ct. 2778 . S tep o ne asks “whether Congress h as di rectly s poken t o t he p recise qu estion of law.” Id. at 842, 104 S .Ct. 2778 . A c ourt s hould u se t he ordinary tools of statutory interpretation, starting with the text, to elucidate the meaning of any statutory language. Id. at 842–43 n. 9, 104 S.Ct. 2778. If Congress has spoken clearly, t hat u nambiguous l anguage i s gi ven e ffect, a nd the a nalysis e nds. H owever, i f t he s tatute i s a mbiguous, then a co urt proceeds to step two o f Chevron. There, the question i s whether t he a gency’s i nterpretation i s a “permissible” one.

1. Chevron Step One It is impossible to read “when ... released” as ambiguous without r endering i t meaningless. T his c onclusion i s unavoidable i n l ight o f b oth t he p lain l anguage o f t he statute and the broader purpose and structure of the law.
a. Plain Language
The core of any statutory analysis is the language itself. “When the plain wording of the statute is clear, that is the end of the matter.” Saysana v. Gillen, 590 F.3d 7, 13 (1st Cir.2009), citing BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 ( 2004). A c ourt “must p resume t hat a legislature says in a s tatute what i t means and means in a statute what it says there.” Conn. Nat. *264 Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations omitted).
[2] The most natural construction of the phrase “when the alien is released” is “at the time of release.” A majority of district courts, including Judge William G. Young in this district, h ave a greed. See e. g., Castaneda v . Souz a, 952 F.Supp.2d 307 ( D.Mass.2013); Baquera v . L ongshore, 948 F.Supp.2d 1258, 1262 n. 3 (D.Colo.2013) (compiling cases). T his interpretation of the five words “at the time of release” requires no manipulation; it simply flows from the p hrase’s usual meaning. C onversely, D efendants’ proposed i nterpretation, “at an y p oint af ter r elease,” requires wrenching th e p hrase o ut of its n ormal context. The ob vious manhandling of l anguage p roposed b y Defendants i s highlighted b y l ooking a t o ther l anguage Congress co uld eas ily have u sed, as suming i ts i ntent followed D efendants’ pr oposed c onstruction, a nd b y examining t he e ffect o f r emoving t he p hrase f rom t he statute.
If Congress intended the open-ended grant of power Defendants cl aim, i t had f ar m ore p recise l anguage available. I n f act, C ongress ha s ne ver b een s hy a bout utilizing b road la nguage to set th e time a t which a p arty can b egin to act . B ut, when C ongress d esires such an outcome, it uses explicit language.
For e xample, i f C ongress wanted t he e xecutive t o d etain an i ndividual “any time a fter” release f rom cu stody, i t could simply have used the phrase “any time after,” as it has i n n umerous o ther s tatutes. See e. g., 8 U.S.C. § 1227(a)(2)(A)(ii); 10 U.S.C. § 12687; 10 U.S.C. § 14112; 14 U.S.C. § 323(c); 16 U.S.C. § 19jj–4; 42 U.S.C. 17385(d); 43 U .S.C. § 5 42; 46 U .S.C. § 40 701(b).
4

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)

Alternatively, C ongress co uld h ave s aid “at a ny poi nt after.” See e.g., 42 U.S.C. § 1395cc–4(c)(1)(B). An e ven simpler “thereafter” would ha ve s ufficed t o c onvey t he open-ended au thority D efendants cl aim. See e. g., 12 U.S.C. § 3020 ; 16 U.S.C. § 18f–1. In sum, had Congress actually i ntended t he r esult D efendants ad vocate, a plethora o f words an d p hrases eas ily a vailable t o Congress would have been more appropriate.
Perhaps more i mportantly, D efendants’ meaning r enders the p hrase “when t he al ien i s r eleased” superfluous. O ne elementary canon o f statutory in terpretation d ictates that “a statute should be construed so that effect is given to all its p rovisions, s o n o p art will b e in operative o r superfluous, void or i nsignificant.” Corley v. U .S., 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) (further citations omitted).
Here, if one removes the phrase “when the alien is released” from § 1226(c), the o nly li mits that r emain a re the en umerated cat egories. I n t hat h ypothetical cas e, t he statute would a llow th e g overnment to d etain, without limit, any individual who falls into one of those categories. That, however, is identical to Defendants’ current reading of the statute.
Defendants argue that the phrase does serve a p urpose; it states the time at which the government can begin to act. Without th e p hrase, th e e xecutive is d irected to d etain specified individuals, but not told when it can begin to do so.
Silence, however, yields the same result. Put differently, if Defendants’ construction of the phrase “when the alien is r eleased” prevailed, t he p hrase s imply would n ot b e needed at all. It is physically impossible for ICE to detain an individual before he is released from criminal custody. ICE can only begin to act once the alien is released. Thus, under D efendants’ i nterpretation, whether t he p hrase “when the alien is *265 released” is inserted into § 1226(c) is i rrelevant, making t he p hrase “inoperative o r superfluous.” This is c ontrary to a b asic r ule o f statutory construction. See Corley, 556 U.S. at 314, 129 S.Ct. 1558.
In s hort, s trictly ba sed on t he words of t he statute themselves, it is flatly implausible to read “when ... released” as s uggesting a nything b ut “at t he t ime o f release.” This p lain-language i nterpretation i s p owerfully supported by the purpose and structure of § 1226(c).6

6

It i s possible, of c ourse, t o r educe t his court’s r eading

of t he p hrase “at t he t ime o f r elease” to a bsurdity by

contracting t he p ermissible t ime frame. I s t he co urt

suggesting th at a n a lien m ust b e d etained w ithin a n hour of release? Within thirty seconds? The time frame at is sue in th is c ase—five years o f l aw-abiding lif e between a one-day criminal detention and apprehension by ICE —renders a ny s uch quibbling i rrelevant. See Castaneda, 952 F .Supp.2d a t 3 21 (“While it h as n o occasion i n this cas e t o d etermine w hat co nstitutes a reasonable period of time, this Court would suggest that any alien who has reintegrated back into his community has not been detained within s uch a r easonable period of time.”).
b. Congressional Purpose
To illu minate th e meaning o f a s tatute, it m ay b e necessary to examine Congress’s purpose in enacting the law. See e. g., Kasten v. Sai nt–Gobain P erformance Plastics Corp., ––– U.S. ––––, 131 S.Ct. 1325, 1333, 179 L.Ed.2d 379 (2011). W ith r espect to § 1226(c), there ar e two r elevant c ases t hat ill ustrate Congress’s i ntent. Together, t hey c onfirm t hat C ongress undoubtedly intended t o gr ant e xtensive power t o t he e xecutive t o detain certain aliens pending removal proceedings. Equally cl early, h owever, t hese cas es d escribe o nly limited c ircumstances where d etention is p ermitted without a bond hearing.
In Demore v . Kim, 538 U .S. 510, 1 23 S .Ct. 1708, 155 L.Ed.2d 72 4 ( 2003), t he S upreme C ourt up held t he constitutionality o f § 1226( c) and o utlined its view o f Congress’s i ntent. C ongress w as concerned w ith an increase i n c riminal c onvictions a mong non-citizens, paired with a d ecrease in the ability to deport those same individuals. Id. at 518, 12 3 S .Ct. 1708 (“Congress adopted t his pr ovision a gainst a ba ckdrop of wholesale failure by the INS to deal with increasing rates of criminal activity b y a liens.”). S pecifically, C ongress was concerned with the t hreat o f r ecidivism, f light r isk, a nd the i nability to id entify a nd locate th e i ndividuals o nce released. See id. at 51 8–22, 12 3 S .Ct. 1 708. T he Congressional r ecord s upported t hat an alysis. Id. c iting Criminal Aliens in the United States: Hearings before the Permanent Subcommittee on Investigations of t he Senate Committee on G overnmental A ffairs, 103d C ong., 1s t Sess. ( 1993); S.Rep. N o. 1 04–48 (1995); S.Rep. N o. 104–249 (1996).
To d eal w ith t hese p roblems, C ongress au thorized immediate immigration d etention for c ertain i ndividuals. The o bvious goal was t o e nsure t he direct transfer o f potentially dangerous and elusive individuals from
5

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)

criminal custody to immigration authorities. Therefore, an extraordinary a nd l imited p ower was p rovided to t he executive t o hold individuals w ithout gi ving t hese individuals a ny oppor tunity f or r elease. T he i ntent animating this C ongressional authorization is h ardly vindicated b y a d istorted interpretation o f the statute t hat would allow immigration authorities to take someone into custody without a r ight t o a bond he aring, s uch a s Plaintiff, who has b een i n th e c ommunity living a law-abiding life for five years.
Following Demore’s recognition of the executive’s broad power to effectuate the true purpose underlying § 1226(c), Saysana *266 v. G illen, 590 F .3d 7, 1 3 ( 1st C ir.2009), focused on t he a ssociated l imits t o t hat a uthority. I n Saysana, the court was asked whether § 1226(c) justified the mandatory d etention o f a no n-citizen r eleased f rom criminal cu stody f or an offense en umerated i n § 1 226(c) before the 1998 effective date of the provision but who, after t hat 1 998 date, w as r eleased f or a s eparate, non-categorized offense. Saysana, 590 F.3d at 9–10. The First C ircuit co ncluded, q uite r easonably, t hat a n individual c ould only be d etained u nder § 122 6(c) after release for one of the enumerated crimes. Id. at 18.
[3] The court explained, “We do not dispute that Congress has d etermined t hat t he specified o ffenses i n the mandatory d etention p rovision a re o f a p articularly serious n ature warranting g reater r estrictions o n lib erty pending removal proceedings.” Id. Nevertheless, the court said, “The mandatory detention provision does not reflect a general policy in favor of detention; instead, it o utlines specific, s erious circumstances under which the ordinary procedures f or r elease o n b ond at t he d iscretion o f t he immigration judge should not apply.” Id. at 17. In essence, while Congress i ntended t o g rant br oad a uthority t o t he executive to detain aliens pending their removal, § 1226(a) was i ntended t o be t he n orm, with § 1226( c) a li mited exception.
[4] The co nfluence o f t hese t wo cas es cl early o utlines a limited r egime o f mandatory de tention, on e where Congress e nvisioned t he immediate (or, a t a m inimum, reasonably prompt) transfer from criminal custody to immigration detention. C ongress’s concern w as w ith individuals whose criminal propensity or risk of flight, or both, r endered quick a nd mandatory d etention c ritical. Under t his r ationale a five-year g ap b etween cr iminal release an d I CE mandatory d etention makes n o s ense whatsoever. B oth the S upreme C ourt’s Demore decision and the subsequent First Circuit decision in Saysana support this common-sense conclusion.
[5] Congress’s g oal i n e nacting 1226( c) s imply doe s n ot apply when a pe rson has r e-integrated i nto s ociety. T he

Saysana court said it best with respect to the threat of bail risks:
[I]t is c ounter-intuitive t o s ay t hat aliens with potentially longstanding community ties are, as a class, poor bail r isks. T he af fected al iens ar e individuals who c ommitted a n offense, and were released.... They have continued to live in the United States. B y a ny lo gic, it s tands to reason that the more remote in time a conviction becomes and the more time a fter a co nviction an individual spends i n a c ommunity, the lo wer h is b ail r isk i s li kely to be.
Id. at 17–18.
[6] Plaintiff’s li fe, as noted, is a case in point. In t he ti me since his r elease from c ustody for t he o riginal o ffense, Plaintiff has had a son, purchased a home, and developed a successful business. He has worked for the good of the community to open a halfway house. While he may have fit t he cat egory o f i ndividuals C ongress was co ncerned with w hen he w as f irst released, at this point h e f alls f ar outside it. Under these circumstances, the only clear inference t o d raw f rom t he s tatute as a whole i s t hat Plaintiff s hould, a t le ast, have a n opportunity to p resent arguments supporting r elease t o a n I mmigration Judge—which, as of the date of this memorandum, he has done successfully.
c. Structure
The s tructure o f a s tatute o ften a ssists a c ourt i n construing t he meaning of i ts words. Id. at 1 3–14. A s Judge Y oung poi nted ou t i n Castaneda, two as pects o f *267 the structure of § 1226(c) support Plaintiff’s view of the plain language.
First, a s Saysana emphasized, § 122 6(c) is a li mited exception i n t he b roader d etention scheme. Castaneda, 952 F.Supp.2d at 314–15. Normally, a strong presumption exists in f avor o f d iscretionary d etention a nd individualized bon d h earings. Section 1226( a) is th e default r oute i f t he go vernment wishes t o d etain a non-citizen; § 1226( c) offers no more t han a na rrow exception.
The structure within § 1226(c) itself also favors Plaintiff’s
6

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)
reading. Id. at 315–16. Section 1226(c) is broken up into two s ub-sections: 1226( c)(1) pr ovides a de finition, a nd 1226(c)(2) of fers a l imited e xception t o m andatory detention. Each, respectively, should be read on its own.
The phrase, “when the alien is released” is included in the definitional s ection. T he p lacement o f the phrase in that section suggests that the five words are intended to serve as a limit. They help to define the group of non-citizens subjected to § 1226(c) as those who commit a crime in an enumerated category and are detained upon release.
However, giving the phrase “when the alien is released” Defendants’ meaning d isjoints t hat c lause f rom the remainder o f § 1226 (c)(1). U nder D efendants’ interpretation, an al ien can be s ubjected t o § 12 26(c) regardless o f when h e o r s he i s r eleased. T hat r eading entirely uproots the phrase from its context. See id.
In s um, t he p lain l anguage of t he statute i ndicates t hat “when ... released” simply means “at the time of release.” The congressional intent behind the law and the structure of t he Act po werfully support t hat r eading. S ince Congress has s poken c learly o n t his i ssue, t he Chevron analysis ends at step one.
2. Chevron Step Two Even i f th e s tatute were a mbiguous, which it is n ot, Defendants’ i nterpretation would s till f alter u nder s tep two of the Chevron framework.
[7] [8] At Chevron step t wo, a court must as k whether t he executive’s interpretation of the statute is a “permissible” one. Chevron, 467 U .S. a t 843, 104 S .Ct. 277 8. An agency’s in terpretation will b e b inding “unless procedurally de fective, a rbitrary o r c apricious in substance, or manifestly contrary to the statute.” U.S. v . Mead C orp., 533 U .S. 2 18, 227, 1 21 S .Ct. 216 4, 15 0 L.Ed.2d 2 92 ( 2001) (citations o mitted). S pecifically, deference t o a n a gency’s c onstruction o f statutory language w ill “depend upon the thoroughness evident in its c onsideration, t he validity o f it s r easoning, [ and] th e consistency with ear lier an d l ater p ronouncements.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
[9] Defendants’ interpretation would stumble at this second level of an alysis ( assuming t hat level were reached) because i t i s flatly unreasonable as a matter o f o rdinary usage an d ex hibits ar bitrariness an d cap rice i n i ts application. T he most glaring pr oblem with D efendants’ reading i s t he co mplete ab sence o f any temporal limitation o n t he e xecutive’s a bility to a ct. D efendants

insist that the statute mandates detention at any point after the Attorney General has decided to remove an individual for a r eason e numerated i n § 1226( c). I mmigration authorities c ould wait te n, t wenty, o r thirty years, i f they wished, before d etaining an alien without a ny r ight t o a bail hearing, even where the alien had lived an exemplary life for all those decades.
[10] This outcome is not only patently unreasonable, but is inconsistent with a fundamental p rinciple underlying o ur system *268 of justice: ex cept i n t he r arest of circumstances, t he s tate may not p ostpone act ion t o deprive a n in dividual o f his o r h er lib erty in definitely. Time limits “promote r epose by giving s ecurity and stability to human a ffairs,” thus allowing a defendant to move on with his life. Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879).
That principle weighs heavily against Defendants in this case. A non-citizen, co nvicted o f a cr ime, r eleased from criminal c ustody, a nd r esuming his l ife without a ny further o ffense for y ears, should n ot s pend h is da ys i n indefinite peril of detention without any opportunity even to s eek p rovisional r elease. S ince D efendants’ interpretation has t his g rossly a rbitrary r esult, i t is impermissible under step two of Chevron.
The s econd pr oblem with D efendants’ i nterpretation is that it has the potential to yield utterly capricious results. Defendants vigorously argue that Section 1226(c) affords them no d iscretion; t hey must, they s ay, d etain P laintiff without a ny b ail hearing. I n t heir view, Congress has required them to de tain, without h earing, all individuals who f all in to a § 1 226(c) category, n o matter how large the gap between a p erson’s release from criminal custody and i mmigration d etention. H owever, D efendants’ interpretation cr eates p recisely t he d iscretion C ongress sought to a void and cap riciously s ubjects s imilarly situated non-citizens to grossly disparate treatment.
Consider the following. Two non-citizens have committed a cr ime en umerated i n § 1226(c), h ave s erved t he s ame sentence, a nd ar e b oth r eleased f rom c ustody t he s ame day. U nder P laintiff’s in terpretation, if I CE wished to detain the individuals without bail, it must take them both into cu stody at t he t ime o f their r elease f rom cr iminal custody. T he t wo would b e t reated, u nder t he s tatute, identically.
Under Defendants’ reading, the statute gives the executive branch the power to treat these two individuals differently. One p erson may b e he ld without b ail o n t he d ay he i s released f rom cr iminal cu stody. T he o ther, f or whatever reason, may be allowed to return to his family and community for years before the executive moves to detain
7

Gordon v. Johnson, 991 F.Supp.2d 258 (2013)

him or her. This scenario gives the executive discretion to select who will be detained immediately upon release and who will b e a llowed to return to th e c ommunity indefinitely. Given that Congress desired to eliminate, not broaden, discretion through this statute, that outcome makes zer o s ense. P laintiff’s r eading cr eates far more consistency i n t he s tatute it self, e specially s ince I CE always r etains t he ab ility to s eek d etention o f an al ien at any time af ter his a pprehension t hrough a he aring b efore an Immigration Judge.
For all these reasons, even if Plaintiff’s interpretation had not been cl ear from the plain words an d cl ear import of the s tatute, t he c ourt would still b e o bliged to a dopt it given t he gr ave flaws i n D efendants’ p roposed construction.7

7

Plaintiff also argues that the Rule of Lenity and Canon

of C onstitutional Avoidance r equire t he court to adopt

his i nterpretation. I t i s not necessary t o r each t hese

contentions g iven t he s impler l ine of l ogic a dopted

here.

B. The Loss of Authority Cases [11] Both the Third and Fourth Circuit, to different degrees, rely o n t he “loss o f a uthority” line o f c ases to u phold Defendants’ i nterpretation of 122 6(c). Sylvain v . A tt’y Gen. of U.S., 714 F.3d 150 (3d Cir.2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir.2012). In U.S. v. Montalvo–Murillo, the Supreme C ourt s tated th e g eneral principle that “construction o f t he [ Bail *269 Reform A ct] must conform t o t he ‘great p rinciple o f p ublic p olicy,’ applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the o fficers o r ag ents t o w hose car e t hey ar e co nfided.” 495 U .S. 71 1, 71 8, 1 10 S .Ct. 2072, 10 9 L .Ed.2d 720 (1990). In additional cases, the Court made clear that “If a statute does not specify a consequence for noncompliance with s tatutory ti ming p rovisions, th e federal c ourts will not i n t he o rdinary co urse i mpose t heir o wn co ercive sanction.” U.S. v . J ames D aniel G ood R eal P rop., 510 U.S. 43, 63, 1 14 S .Ct. 492 , 126 L .Ed.2d 490 ( 1993) (citations o mitted). I n other words, ab sent a cl ear Congressional d irective, a c ourt s hould not s trip p ower from t he e xecutive b ranch s imply b ecause t he ex ecutive fails to act in a timely manner.
Drawing on this principle, the Third and Fourth Circuits concluded that it would be impermissible to read § 1226(c) as i ntending t he p hrase “at the moment o f r elease” to signify “at t he moment o f r elease an d not l ater.” Hosh,

680 F.3d at 380. To do so, these courts suggested, would be to enact a penalty where none was intended.
In making t his argument, the Sylvain court analogized § 1226(c) to the Speedy Trial Act (“STA”). 714 F.3d at 160. The T hird C ircuit o ffered t hat statute to il lustrate t he clarity with which C ongress s peaks when i t wants a deadline t o h ave b ite. T he S TA ex plicitly p recludes prosecution if a trial is not held within a cer tain period of time after a p lea is tendered. 18 U.S.C. § 3161(c)(1). The loss o f th e r ight to d etain without a b ail h earing, th e argument runs, has no equivalent statutory mandate.
Like o ther c ourts, th is c ourt is n ot p ersuaded th at th is analogy holds up. See e. g., Castaneda, 952 F .Supp.2d a t 318–19; Castillo v. ICE Field Office Dir., 907 F.Supp.2d 1235, 1239 (W.D.Wash.2012).
The essence of the “Loss of Authority” cases, as noted, is that a c ourt should not intervene to strip p ower from the executive branch unless Congress explicitly directs it to. The principle t hus ap plies in cases where judicial action would remove power from the executive. For instance, in Montalvo–Murillo, the executive would ha ve been precluded f rom d etaining cer tain i ndividuals. Montalvo–Murillo, 495 U .S. at 717 –18, 110 S.Ct. 20 72. In another case Defendants rely on, Brock v. Pierce Cnty., the e xecutive would ha ve b een p rohibited f rom recovering misused government funds had the Court ruled against t he S ecretary o f L abor. 476 U.S. 253 , 254, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986).
That cr itical co mponent, el imination o f a uthority, is missing here. The relevant grant of authority in § 1226 is the po wer t o de tain a n individual pe nding r emoval proceedings. That authority has its genesis i n § 1 226(a). Section (c) is merely an exception that, in limited cases, alters the method b y which t hat authority is c arried o ut. Giving § 1226(c) its plain meaning here does not limit or prevent the government from detaining individuals pending removal. The fair construction of the statute only has the effect of circumscribing the executive’s power to detain a p erson without a h earing. The e xtraordinarily powerful sanction set forth in the STA—the prohibition of a prosecution of a criminal, with or without prejudice—offers n o supportive analogy for Defendants’ proposed construction of 1226(c).
IV. CONCLUSION
For t he f oregoing r easons, t he c ourt A LLOWED Plaintiff’s Writ of Habeas Corpus (Dkt. No. 1), DENIED
8

Gordon v. Johnson, 991 F.Supp.2d 258 (2013) Plaintiff’s M otion for a P reliminary I njunction ( Dkt. N o. 2) w ithout pr ejudice, and DE NIED *270 Defendant’s Motion to Dismiss (Dkt. No. 13).
9

 
 Gordon v. Johnson, 300 F.R.D. 28 (2014)

300 F.R.D. 28 United States District Court,
D. Massachusetts.
Clayton Richard GORDON, on behalf of himself and others similarly situated, Plaintiff/Petitioner,
v. Jeh Charles JOHNSON, Secretary of Homeland Security; Eric H. Holder, Jr., Attorney General; John Sandweg, Acting Director, Immigration and Customs Enforcement; Sean Gallagher, Acting
Field Director, Immigration and Customs Enforcement; Christopher Donelan, Sheriff of Franklin County; Michael G. Bellotti, Sheriff of Norfolk County; Steven W. Tompkins, Sheriff of Suffolk County; Thomas M. Hodgson, Sheriff of Bristol County; and Joseph D. McDonald, Jr.,
Sheriff of Plymouth County, Defendants/Respondents.
No. 13–CV–30146–MAP. | Signed March 27, 2014.
Synopsis Background: Alien, a la wful p ermanent r esident who was s ubjected t o m andatory detention pe nding r emoval five years af ter his ar rest f or n arcotics p ossession, petitioned for a writ of habeas c orpus on his o wn be half and on behalf o f a class o f similarly situated individuals, seeking a n i ndividualized b ond he aring t o c hallenge h is ongoing d etention. P etitioner f iled motion f or c lass certification.
Holding: The D istrict C ourt, Ponsor, J ., h eld th at c lass certification was appropriate.
Ordered accordingly.
Attorneys and Law Firms
*29 Adriana L afaille, Mat thew S egal, A merican C ivil Liberties Union, B oston, MA, E lizabeth A. B adger, Lutheran S ocial S ervices, W orcester, M A, Eunice L ee, Michael Tan, American Civil Liberties Union Federation, San Francisco, CA, Judy Rabinovitz, American C ivil Liberties Union, New York, NY, for Plaintiff/Petitioner.
Aram A. G avoor, Sarah B . F abian, U nited S tates Department o f J ustice, Elizabeth J . S tevens, Office o f

Immigration L itigation, W ashington, D C, Karen L . Goodwin, U nited S tates A ttorney’s O ffice, S pringfield, MA, Jeffrey T . C ollins, O ffice o f t he Attorney G eneral, Boston, MA, for Defendants/Respondents.
ORDER REGARDING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, PLAINTIFF CESAR
CHAVARRIA RESTREPO’S INDIVIDUAL HABEAS PETITION, AND DEFENDANTS’ MOTION TO DISMISS (Dkt. Nos. 16, 99, 102, & 105)
PONSOR, District Judge.
Plaintiffs are individuals who, subsequent to their release from criminal confinement, were taken into Immigration & Customs E nforcement ( “ICE”) c ustody under t he mandatory de tention pr ovisions of 8 U .S.C. § 1226( c). They seek to certify a cl ass of all i ndividuals who are or will b e d etained u nder th at provision, b ut who, in t heir view, were not detained “when ... released,” as the statute requires.
Plaintiff C esar C havarria R estrepo, t he p roposed cl ass representative, a lso s eeks individual r elief t hrough hi s habeas petition. (2d Am. Class Action Compl. & Pet. for Writ o f H abeas C orpus, D kt. N o. 9 9.) The p arties h ave agreed th at, if th e c ourt o rders Plaintiff C havarria’s remedy c oncurrent with c lass c ertification, no f urther amendment of the complaint to ensure a live controversy will be necessary. (Joint Statement, Dkt. No. 100.)
The s ole q uestion t his ca se p resents is whether t he “when ... released” language of 8 U .S.C. § 122 6(c) imposes a n i mmediacy r equirement u pon t he government’s power to detain and thus limits the class of individuals subject to mandatory detention, or whether the phrase merely states t he t ime at which t he g overnment’s power to d etain co mmence—permitting that p ower to b e exercised at any time thereafter, no matter how far off. On October 23, 2 013, a nd s ubsequently o n D ecember 3 1, 2013, this court concluded that “when ... released” means “at t he t ime o f r elease.” Gordon v . J ohnson, 991 F.Supp.2d 258, 2013 W L 69053 52 ( D.Mass. D ec. 31, 2013); Gordon v . N apolitano, No. 13 –cv–30146, 201 3 WL 5774843 (D.Mass. Oct. 23, 2013).
To r each t hat co nclusion, t he co urt f irst d etermined that there was no ambiguity in t he language—given its p lain meaning, t he purpose of the Act, a nd the structure of t he law—and t hus d eference t o t he B oard o f I mmigration Appeal’s ( “BIA”) d ecision in Matter o f R ojas, 23 I & N
1

Gordon v. Johnson, 300 F.R.D. 28 (2014)

Dec. 117 ( BIA 2001) , was n ot w arranted. Gordon, 991 F.Supp.2d a t 263 –67, 20 13 WL 690535 2 a t * 4–8. T he court f urther he ld t hat e ven i f t he l anguage were ambiguous, the B IA’s in terpretation—finding a complete absence i n t he s tatute o f an y t emporal l imit o n the government’s power to detain—was unreasonable and not entitled to deference.1 Id. at 267–68, at *8–9.

1

This a nalysis is a pplicable to Plaintiff C havarria, a nd

justifies an individualized bond hearing in his case.

The c ourt no w c oncludes t hat, p ursuant t o Fed.R.Civ.P. 23, class treatment is appropriate. First, each requirement of Rule 23(a) has been satisfied. Defendants do not object to P laintiffs’ n umerosity a rguments—anchored o n ICE’s focus o n d etaining a liens w ith c riminal c onvictions, Plaintiffs counsel’s *30 investigation at one facility, and a list of 2 0 cu rrent o r r ecent cases i n Massachusetts. (Pls’ Mem. i n S upp., D kt. N o. 17.) B ased on t he i nformation provided by Plaintiffs, it is reasonable to conclude that the class is over the forty-person threshold generally required in t he F irst Circuit. See George v . N at’l W ater Main Cleaning C o., 286 F .R.D. 168, 17 3 ( D.Mass.2012). Further, the class is dispersed across different facilities, is inherently transient, a nd is f illed with individual c lass members u nknown ( and t o s ome e xtent un knowable) t o Plaintiffs: joinder is therefore impracticable.

The r equirements o f co mmonality, t ypicality, an d

adequacy ar e al so eas ily met. A single q uestion o f law,

previously a ddressed b y t he c ourt, b inds t ogether t he

entire class. A single, statutory interpretation governs the

answer t o t he en tire cas e, an d n o factual

differences—Defendants’ d

isagreement

notwithstanding—will have any bearing on the analysis of

the is sues. P laintiffs’ c laims are th erefore c ommon a nd

typical of the class, and Plaintiff Chavarria is an adequate

representative. Plaintiffs’ counsel, given their experience

in t his ar ea o f l aw, ar e al so more t han ad equate u nder

Rule 23(a)(4) and Rule 23(g).

The cl ass, s eeking s olely i njunctive o r d eclaratory r elief, also f alls n eatly i nto Rule 2 3(b)(2). T hough t he c ourt i s reserving judgment a t t his point a s to th e a vailability o f injunctive r elief under 8 U .S.C. § 1252( f)(1), t he cl ass will s till b e e ntitled, a t a minimum, to some form o f declaratory j udgment. See, e .g., Reid v . D onelan, 297 F.R.D. 185, 2 014 WL 5451 44 ( D.Mass. F eb. 10, 2014). The cl ass ca n t herefore b e c ertified as a Rule 23( b)(2) class.

A f inal note ab out t he cl ass i s n ecessary. I n d efining t he contours o f th e c lass, th e c ourt h as li mited it to a ll

individuals n ot d etained within forty-eight ho urs o f release f rom criminal c ustody. I t has d one t his solely to ease t he b urden o n t he go vernment, s ince i t may b e impractical, or in some instances impossible, to arrange a direct tr ansfer f rom c riminal c ustody to i mmigration detention. N onetheless, i n d efining t he c lass i n t his way, the court is not intending to say that “when ... released” necessarily permits any gap at all. Instead, any individual detained w ithin that f orty-eight ho ur window i s s imply not p art o f t his cl ass an d will n eed t o s eek a s eparate, individualized remedy.
To p ermit P laintiff Chavarria to o btain in dividual r elief, while a lso a voiding t he u nnecessary a nd c ontinual amendment o f P laintiffs’ c omplaint to e nsure a liv e controversy, the c ourt i s i ssuing this order with the expectation that a more detailed memorandum will follow. That memorandum will acco mpany t he co urt’s d ecision and o rder, o nce r endered, on t he P laintiffs’ M otions for Summary Judgment. (Dkt. Nos. 83 & 107.)
For these reasons, which are subject to amplification in a further memo, the c ourt hereby ALLOWS Plaintiffs’ Motions f or C lass C ertification, ( Dkt. N os. 16 & 102) , GRANTS Plaintiff Chavarria’s petition for habeas corpus, (Dkt. N o. 9 9), a nd D ENIES D efendants’ M otion t o Dismiss, (Dkt. No. 105).
Defendants’ shall p rovide P laintiff Chavarria a n individualized bon d h earing as d etailed i n t he p arties’ joint s ubmissions. ( Dkt. N o. 1 00.) The c ourt a lso he reby certifies the following class:
all a liens who a re o r w ill b e detained i n Ma ssachusetts u nder 8 U.S.C. § 1226( c), w hom t he government alleges to be subject to a g round of r emovability a s described i n 8 U .S.C. § 1226(c)(1)(A)-(D), and w ho w ere not taken i nto i mmigration custody within f orty-eight hours ( or, i f a weekend o r ho liday intervenes, within no more t han five d ays) o f release f rom t he r elevant p redicate custody.
Plaintiff Chavarria i s appointed cl ass r epresentative, an d Attorneys Adrianna Lafaille, M atthew S egal, J essie Rossman, Judy Rabinovitz, Eunice Lee, Michael Tan, and Elizabeth Badger are appointed class counsel.
It is So Ordered.
2

 
 Case: 13-1994 Document: 00116936604 Page: 1 Date Filed: 12/23/2015 Entry ID: 5964508
United States Court of Appeals
For the First Circuit
No. 13-1994
LEITICIA CASTAÑEDA,
Petitioner, Appellee,
v.
STEVE SOUZA, Superintendent, Bristol County House of Corrections, in his official capacity and his successors and
assigns, Respondent, Appellant,
BRUCE E. CHADBOURNE, Field Office Director, Boston Field Office, Office of Detention and Removal, U.S. Immigrations and Customs Enforcement, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; JOHN T.
MORTON, Director, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; JEH JOHNSON, Secretary, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; ERIC H. HOLDER, JR., Attorney General, U.S. Department of Justice, in his official capacity and his successors and assigns, Respondents.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
No. 13-2509
CLAYTON RICHARD GORDON, on behalf of himself and others similarly situated,
Petitioner, Appellee,

Case: 13-1994 Document: 00116936604 Page: 2 Date Filed: 12/23/2015 Entry ID: 5964508
PRECIOSA ANTUNES; GUSTAVO RIBEIRO FERREIRA; VALBOURN SAHIDD LAWES; NHAN PHUNG VU,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General; SARAH SALDANA, Director of Immigration and Customs Enforcement; SEAN GALLAGHER, Acting
Field Office Director; CHRISTOPHER J. DONELAN; MICHAEL G. BELLOTTI, Sheriff; STEVEN W. TOMPKINS, Sheriff; THOMAS M. HODGSON, Sheriff; JOSEPH D. MCDONALD, JR., Sheriff; RAND BEERS,
Acting Secretary of Homeland Security,
Respondents, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatta, and Barron,
Circuit Judges.
Leon Fresco, Deputy Assistant Attorney General, Office of Immigration Litigation, with whom Sarah B. Fabian, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Elianis N. Perez, Senior Litigation Counsel, Joyce R. Branda, Acting Attorney General, Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division, William C. Peachy, Director, Office of Immigration Litigation, District Court Section, Elizabeth Stevens, Assistant Director, Hans. H. Chen, Trial Attorney, were on brief, for respondents-appellants.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky Law Offices were on brief, for petitioner-appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil Liberties Union Foundation of Massachusetts, Judy Rabinovitz, Michael Tan, Anand Balakrishnan, ACLU Foundation Immigrants’ Rights Project, Elizabeth Badger, and Kids in Need of Defense c/o Nutter McClennan & Fish LLP, were on brief, for petitioner-appellee Gordon.
Alina Das, Esq., and Washington Square Legal Services, Inc., - 2 -

Case: 13-1994 Document: 00116936604 Page: 3 Date Filed: 12/23/2015 Entry ID: 5964508
Immigrant Rights Clinic, on brief for Immigration Law Professors, American Immigration Lawyers Association, Boston College Law School Immigration Clinic, Boston University Law School International Human Rights Clinic, Detention Watch Network, Families for Freedom, Greater Boston Legal Services, Harvard Immigration and Refugee Clinical Program, Immigrant Defense Project, Immigrant Legal Resource Center, Immigrant Rights Clinic, National Immigrant Justice Center, National Immigration Project of the National Lawyers Guild, Political Asylum/Immigration Representation Project, Suffolk University Law School Immigration Law Clinic, and University of Maine School of Law Immigrant and Refugee Rights Clinic, as amici curiae in support of petitioners-appellees and in support of affirmance.
Mathew E. Price, Lindsay C. Harrison, and Jenner & Block LLP, on brief for amici curiae Former Immigration Judges and Department of Homeland Security Officials in support of petitionersappellees.
Opinion En Banc December 23, 2015
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Case: 13-1994 Document: 00116936604 Page: 4 Date Filed: 12/23/2015 Entry ID: 5964508
The judgments entered in the district courts are affirmed by an equally divided en banc court. See Savard v. Rhode Island, 338 F.3d 23, 25 (1st Cir. 2003) (en banc).
Opinions follow. BARRON, Circuit Judge, with whom TORRUELLA and THOMPSON, Circuit Judges, join. Congress has long given the Attorney General discretion to decide whether to take aliens who are subject to removal into immigration custody. Congress also has long given the Attorney General discretion to decide whether to release on bond aliens who are in immigration custody while their removal proceedings are pending. Nearly thirty years ago, however, Congress began enacting a succession of similar but slightly revised immigration detention mandates that limited the Attorney General's detention discretion in certain respects. These consolidated appeals require us to decide the scope of the present version of this detention mandate, codified in 8 U.S.C § 1226(c). Much like its precursors, this detention mandate first directs that the Attorney General shall take into custody certain "criminal aliens" -- as defined by their commission of specified offenses -- "when [they are] released" from criminal custody. And, much like its precursors, this detention mandate then bars the Attorney General from releasing certain aliens on bond once they have been placed in immigration custody. The key point of dispute
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concerns the class of aliens to whom this bar to bonded release applies.
We conclude that Congress intended for the present detention mandate to operate like its precursors and thus that its bar to bonded release applies only to those specified criminal aliens whom the Attorney General took into custody "when [they were] released" from criminal custody. We further conclude that the two aliens who bring these habeas petitions were not taken into immigration custody "when [they were] released" from criminal custody because they had been released from criminal custody years before their immigration custody started. As a result, we conclude that the present detention mandate does not bar either petitioner from seeking release on bond pursuant to the Attorney General's discretionary release authority.
Two district courts of this Circuit reached the same conclusion in granting the petitioners the right to an individualized bond hearing at which they could seek release prior to the completion of the removal process. See Gordon v. Johnson, 991 F. Supp. 2d 258 (D. Mass. 2013); Castañeda v. Souza, 952 F. Supp. 2d 307 (D. Mass. 2013). A panel of this Circuit affirmed. See Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014). This Court then agreed to rehear the case en banc, and is now, by a vote of three to three, evenly divided. In consequence, the judgments of the district courts are affirmed, as we believe they should be
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given Congress's evident intention not to deny aliens like petitioners the chance to seek bonded release, the consequential nature of the decision to deny aliens such a chance, and the reality that removal proceedings can stretch on for months or even years.
I. The key parts of the Immigration and Naturalization Act are codified in 8 U.S.C. § 1226, and, in particular, two subsections of it: (a) and (c).1 Through subsection (a), Congress gave the Attorney General broad discretion to decide whether to take into custody an alien who is in the removal process. Congress also gave the Attorney General, through that same subsection, broad discretion to release on bond those aliens whom she had placed in custody so that they would not have to be detained for the often lengthy removal process.2
1 This authorization, located in 8 U.S.C. § 1226(a), provides: "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General . . . may continue to detain the arrested alien . . . and . . . may release the alien on . . . bond . . . ."
2 Although the Attorney General now shares responsibilities under § 1226(a) with the Secretary of Homeland Security and the Under Secretary for Border and Transportation Security, see Homeland Security Act of 2002, Pub. L. No. 107–296, §§ 402, 441, 116 Stat. 2135, we will for convenience refer to this authority as being vested in the Attorney General.
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To govern the exercise of this release power, the Attorney General issued regulations pursuant to subsection (a). These regulations authorize immigration judges (subject to review by the Board of Immigration Appeals (BIA) and ultimately the Attorney General) to make individualized bond determinations based on a detainee's flight risk and danger to the community. See 8 C.F.R. § 1236.1(c)(8), (d)(1), and (d)(3).
As a result of § 1226(a) and its implementing regulations, these two petitioners, Leiticia Castañeda and Clayton Gordon, plainly may be detained for the entirety of the removal process if they are found to pose sufficient bond risks. There is a question, however, whether they must be detained for the entirety of that process regardless of the showing they could make at a bond hearing.
The question arises due to the contested scope of the limited exception to § 1226(a) that is carved out by § 1226(c). The exception appears in two paragraphs of subsection (c) under the single heading, "Detention of Criminal Aliens."3
3 Section 1226(c) provides: (c) Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who--
(A) is inadmissible by reason of having committed any offense covered in [8 U.S.C. § 1182(a)(2)],
(B) is deportable by reason of having committed any offense covered in [8 U.S.C. § 1227(a)(2)(A)(ii)(iii),(B)-(D)],
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Together, the paragraphs establish the latest version of
a detention mandate Congress first enacted in 1988. Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), tit. 111 § 303, Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-585. In each prior version, Congress required first that the
Attorney General "shall take into [immigration] custody any alien
convicted" of an enumerated felony offense "upon completion" of
the alien's sentence (1988 mandate) or "upon [the alien's] release"
from criminal custody (later mandates). And, in each prior
version, Congress then required that the Attorney General "shall
not release such felon from [immigration] custody." See Anti-Drug
Abuse Amendments Act of 1988, § 7343(a), Pub. L. No. 100-690, 102
Stat. 4181, 4470; Immigration Act of 1990, § 504(a), Pub. L. No.
101-649, 104 Stat. 4978, 5049-50; Antiterrorism and Effective
(C) is deportable under [8 U.S.C. § 1227(a)(2)(A)(i)] on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under [8 U.S.C. § 1182(a)(3)(B)] or deportable under [8 U.S.C. § 1227(a)(4)(B)], when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release The Attorney General may release an alien described in paragraph (1) only if . . . release of the alien from custody is necessary to provide protection to a witness . . . .
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Case: 13-1994 Document: 00116936604 Page: 9 Date Filed: 12/23/2015 Entry ID: 5964508
Death Penalty Act of 1996 (AEDPA), § 440(c), Pub. L. No. 104-132,
110 Stat. 1214, 1277.
The version of the detention mandate that is at issue
here was enacted in 1996 and follows this same structure. The
first paragraph, identified as § 1226(c)(1), appears under the
heading "Custody." Like the portion of the earlier enacted
detention mandates that contained the "upon completion" or "upon
release" clauses, this paragraph sets forth the following custody
directive: the Attorney General "shall take into [immigration]
custody" an alien who has committed certain offenses or engaged in
certain concerning behavior -- specified in subparagraphs (A)-(D)
of (c)(1) -- "when the alien is released, without regard to whether
the alien is released on parole, supervised release, or probation
. . . ."4
4 As these petitioners were released from prison sentences, there is no question they were "released" within the meaning of § 1226(c)(1). With respect to the precise requirement the word "released" imposes, the Second Circuit recently held in Lora v. Shanahan that a convicted alien who receives a non-carceral sentence has also been "released." Lora v. Shanahan, 2015 WL 6499951, at *6 (2d Cir. Oct. 28, 2015). The Second Circuit concluded that this interpretation of "released" "avoids nullifying" the trailing language in (c)(1), which, through its reference to "probation," "clearly contemplates non-carceral sentences." Id. In effect, the Second Circuit interprets "released" to mean "release from the technical custody of the criminal court" (i.e., at the end of the sentencing proceeding), a position that the government has elsewhere advanced. See In re West, 22 I. & N. Dec. 1405, 1408 (BIA 2000). In so doing, the Second Circuit did not address the BIA's view that "released" means even release from pre-conviction arrest. See In re Kotliar, 24 I.
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Case: 13-1994 Document: 00116936604 Page: 10 Date Filed: 12/23/2015 Entry ID: 5964508
The second paragraph, identified as § 1226(c)(2), follows directly after (c)(1) and appears under the heading "Release." Like the portion of the earlier enacted detention mandates that contained the "such felon" clause, this paragraph sets forth the following bar to bonded release from immigration custody: the Attorney General "may release an alien described in paragraph (1) only if" the alien satisfies certain limited criteria not at issue here.5
Under petitioners' view, (c)(1) and (c)(2) operate in tandem just as the earlier detention mandates did. In consequence of the words "when" and "released" in the first paragraph, the Attorney General must timely take specified aliens coming out of criminal custody into immigration custody. The second paragraph, by referring to the prior paragraph, then requires the Attorney General not to release on bond the specified aliens that she has timely taken into immigration custody following their release from criminal custody in accordance with the directive in (c)(1).
& N. Dec. 124, 125 (BIA 2007); West, 22 I. & N. Dec. at 1410; see also Saysana, 590 F.3d at 14 (suggesting, more broadly, that an alien could be arrested and not convicted and yet still fall within § 1226).
5 Aliens taken into custody pursuant to § 1226(c) are entitled to a "Joseph" hearing at which the alien "may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that [U.S. Immigrations and Customs Enforcement] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention." Demore v. Kim, 538 U.S. 510, 514 n.3 (2003).
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Case: 13-1994 Document: 00116936604 Page: 11 Date Filed: 12/23/2015 Entry ID: 5964508
Petitioners contend that this reading of § 1226(c) makes sense not only as a matter of text, structure, and history, but also on its own terms. Petitioners point to the substantive differences between aliens taken into immigration custody "when . . . released" from criminal custody and those aliens who are taken into immigration custody some time after they have been "released" from criminal custody. Petitioners emphasize that "the experience of having one's liberty stripped away is drastically different from the experience of not having it restored." See Castañeda v. Souza, 952 F. Supp. 2d 307, 318 n.10 (D. Mass. 2013). They also note that their intervening period of freedom makes it possible to take account of their post-release conduct in evaluating the flight risk or danger they may pose.6 And amici contend that Congress had practical reasons to limit the scope of the mandate in this way, given resource constraints on detention capacity. See Amicus Br. of Frm. Imm. Judges and DHS Sec. Officials at 17-20.
On the basis of this reading of § 1226(c), petitioners contend that the exception to § 1226(a) that (c) carves out does not apply to them due to the remoteness of their release from
6 For example, since his release from criminal custody in 2008, petitioner Clayton Gordon has become a father, bought a house, developed a successful business, and worked on a project to open up a halfway house for women. Castañeda, 769 F.3d at 40.
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Case: 13-1994 Document: 00116936604 Page: 12 Date Filed: 12/23/2015 Entry ID: 5964508
criminal custody.7 Accordingly, petitioners argue they may seek discretionary release on bond under (a) just like any other alien placed in custody by the Attorney General pursuant to that subsection.
The government counters that petitioners' argument fails at the threshold on the basis of the interpretation of § 1226(c)(2) that the BIA set forth in In re Rojas, 23 I. & N. Dec. 117 (BIA 2001). The BIA held in Rojas that only subparagraphs (A)-(D) of (c)(1) (which enumerate predicate offenses and other qualifying misconduct) limit (c)(2). Rojas thus makes the rest of (c)(1) -including the "when . . . released" clause and its trailing language specifying what counts as a "release[]" from criminal custody -- irrelevant to the application of (c)(2). See Rojas, 23 I. & N. Dec. at 121 ("The 'when released' clause is no more a part of the description of an alien who is subject to detention than are the other concluding clauses." (emphasis in original)).
7 Leiticia Castaneda, a native of Brazil, was arrested in Massachusetts for misdemeanor possession of cocaine, sentenced to probation, and released from custody in 2008. Castañeda, 769 F.3d at 39. Clayton Gordon, a native of Jamaica, was arrested in Connecticut for possession of cocaine with intent to distribute and was thereupon released from custody in 2008. Id. at 40. Gordon subsequently pled guilty and received a suspended prison sentence and three-year probationary term in 2009. More than four years after their respective releases from criminal custody, the government took each of the petitioners into immigration custody and charged them with removal due to their convictions. Id.
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Case: 13-1994 Document: 00116936604 Page: 13 Date Filed: 12/23/2015 Entry ID: 5964508
The government contends we must defer to Rojas's conclusion that whatever limitations the words "when" and "released" impose on § 1226(c)(1) do not matter for (c)(2) because the text of (c)(2) is not clear on that key point. The government claims we must do so because Rojas reasonably construed (c)(2) to reduce the chance that an alien with an (A)-(D) offense might be released due to a mistaken evaluation of bond risk. The government therefore argues that Rojas requires petitioners' mandatory detention without bond -- notwithstanding their years of living freely -- because each petitioner committed an (A)-(D) offense and nothing more is required for (c)(2) to apply.
In the alternative, the government asserts that even if Rojas is wrong and the "when . . . released" clause is relevant to (c)(2), the petitioners were in fact taken into immigration custody "when . . . released." The government argues that the word "when" is best read in context to mean "if" or "any time after." As a fallback, the government argues that the word "when" at most triggers a duty to act promptly that persists indefinitely. Either way, the government argues, § 1226(c)(2) applies to aliens with predicate offenses who were taken into immigration custody even years after their release from criminal custody.8
8 After the panel ruled for the petitioners, the government scheduled bond hearings for each one. Before Castañeda's bond hearing took place, the government, of its own accord, concluded
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Case: 13-1994 Document: 00116936604 Page: 14 Date Filed: 12/23/2015 Entry ID: 5964508
We consider each argument in turn. We explain first why
we conclude that the "when . . . released" clause in § 1226(c)(1)
also modifies the scope of (c)(2). We then explain why we conclude
that the "when . . . released" clause imposes a deadline for
picking up an alien coming out of criminal custody that limits the
application of (c)(2)'s bar to bonded release.9
II.
We start with the question whether we must defer to
Rojas's reading of § 1226(c)(2), under which the
"when . . . released" clause in (c)(1) is wholly irrelevant to the
scope of (c)(2). In undertaking this inquiry, we apply the two-
that she did not pose a flight risk or a danger to the community and released her. Gordon, by contrast, made his case to an immigration judge at a bond hearing, prevailed, and was released as well. These decisions to release the petitioners do not render the present appeal moot. See Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 161 n.12 (3d Cir. 2013).
9 Four other circuits have addressed the issues we address here. In Hosh v. Lucero, 680 F.3d 375, 378-381 (4th Cir. 2012), the Fourth Circuit claimed to defer to Rojas. But, contra Rojas, Hosh actually assumed the "when . . . released" clause limited § 1226(c)(2) and concluded that the word "when" is not timelimited -- a view that the BIA has never adopted. In Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 161 (3d Cir. 2013), the Third Circuit avoided deciding the meaning of "an alien described in paragraph (1)" by holding for the government on the basis of lossof-authority principles. More recently, in Olmos v. Holder, 780 F.3d 1313, 1324 (10th Cir. 2015), the Tenth Circuit deferred to Rojas, as did the Second Circuit in in Lora, 2015 WL 6499951, at *6. Numerous district courts have addressed the issue, and most have gone the other way. See Immig. Law Profs. et al. Amicus Br. at A-xxii-xxix (assembling eighty-nine cases that have rejected Rojas).
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Case: 13-1994 Document: 00116936604 Page: 15 Date Filed: 12/23/2015 Entry ID: 5964508
step test set forth in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). At step one, we must
decide whether Congress spoke clearly to the precise question at
issue. Id. at 842. If so, that ends the matter. Id. at 842-43.
If not, then, at step two, we must defer to the administering
agency's interpretation if it is reasonable. Id. at 843.
Our focus is on step one, which is where we conclude
Rojas went wrong.10 For while Chevron is a famous doctrine, much
precedent cautions us not to be so star-struck by it that we must
defer to the agency at the first sign of uncertainty about the
meaning of the words that Congress chose. Rather, under Chevron,
we must be mindful that "a statute may foreclose an agency's
preferred interpretation despite such textual ambiguities if its
structure, legislative history, or purpose makes clear what its
text leaves opaque." See Council for Urological Interests v.
Burwell, 790 F.3d 212, 221 (D.C. Cir. 2015) (quoting Catawba Cnty.,
10 The line between step one and step two of the Chevron analysis is not always clear. See Saysana v. Gillen, 590 F. 3d 7, 13-18 (1st Cir. 2009) (in declining to defer to the BIA's interpretation of § 1226(c), the court relied on both step one and step two); Patricia M. Wald, Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On, 32 Tulsa L.J. 221, 243 (1996) (noting that whether a case is decided at step one depends on "how judges identify the precise question at issue, since at one level of generality the statute may answer it under Chevron step one, but at [another] level there may be an ambiguity"). Because we conclude that Congress spoke clearly to the relationship between § 1226(c)(1) and (c)(2), and because the precise issue Rojas decided concerned that relationship, we resolve this issue under step one.
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Case: 13-1994 Document: 00116936604 Page: 16 Date Filed: 12/23/2015 Entry ID: 5964508
N.C. v. E.P.A, 571 F.3d 20, 35 (D.C. Cir. 2009)); see also Chemical Manufacturers Ass'n v. N.R.D.C., 470 U.S. 116, 126 (1984) ("We should defer to [the administering agency's view of the statutory language] unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent.").
And that is the case here. In light of both the Act's structure, see F.D.A. v. Brown & Williamson Tobacco Co., 529 U.S. 120, 132-34 (2000) (analyzing the words of a statute in view of the "overall statutory scheme" at Chevron step one); Saysana, 590 F.3d at 13-15 (emphasizing the structure of § 1226(c) in declining to defer to the BIA's interpretation by noting that "the 'plain meaning' of a statutory provision is often made clear not only by the words of the statute but by its structure"), and the legislative history, see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987) (considering legislative history at step one of the Chevron analysis in declining to defer to Immigration and Naturalization Service (INS) interpretation of statute); Succar v. Ashcroft, 394 F.3d 8, 31 (1st Cir. 2005) ("Our view is that where traditional doctrines of statutory interpretation have permitted use of legislative history, its use is permissible and even may be required at stage one of Chevron."), we conclude that Congress plainly intended for the "when . . . released" clause in (c)(1) to apply to (c)(2) as well.
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Case: 13-1994 Document: 00116936604 Page: 17 Date Filed: 12/23/2015 Entry ID: 5964508
A. Rojas identified a clear choice between two possible readings of the words in the cross-reference in § 1226(c)(2), "an alien described in paragraph (1)." See Rojas, 23 I. & N. Dec. at 119. Given the text of the cross-reference, the alien to whom (c)(2) refers is either (as Rojas held) an alien who has committed an offense specified in subparagraphs (A)-(D) of (c)(1) or (as petitioners contend) an alien who was taken into custody pursuant to the duty imposed by paragraph (1) as a whole. This choice matters because it determines whether the "when . . . released" clause -- and whatever limits it imposes through the words "when" and "released" -- modifies the scope of § 1226(c)(2). If "an alien described in paragraph (1)" refers to an alien who was taken into custody pursuant to the duty imposed by (c)(1) as a whole, then the cross-reference would not merely refer to an alien who has committed an (A)-(D) offense. It would instead refer to an alien who has committed an (A)-(D) offense and whom the Attorney General took into immigration custody "when" the alien was "released" from criminal custody, as the "when . . . released" clause sets forth the conditions under which that duty applies. Rojas, 23 I. & N. Dec. at 121-22. And (c)(2), then, would come into play as a bar to the release of only those aliens picked up after the duty in (c)(1) had been discharged. See id. at 119 (noting that the cross-reference in (c)(2) could be
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Case: 13-1994 Document: 00116936604 Page: 18 Date Filed: 12/23/2015 Entry ID: 5964508
read to "refer[] to an alien who is taken into [immigration custody] 'when the alien is released'").
In our view, the words "an alien described in paragraph (1)" comfortably support petitioners' reading. Consistent with the ordinary meaning of the word "described," § 1226(c)(2) refers to a "mental image, an impression, or an understanding of the nature and characteristics," see Webster's Third New International Dictionary 610 (2002), of the alien whom (c)(1) as a whole calls to mind. And thus "an alien described in paragraph (1)" refers to an alien who has committed an enumerated offense and whom the Attorney General has taken into immigration custody "when . . . released" from criminal custody. See also The American Heritage Dictionary of the English Language 476 (5th ed. 2011) (defining "describe" as "[t]o convey an idea or impression of" or "[t]o trace the form or outline of").
No rule of grammar counsels against this reading. Antecedents to cross-references may be found in verbal and adverbial phrases in prior paragraphs not just because (as our colleagues suggest) users of English sometimes use language awkwardly. Antecedents to cross-references may be found in such places because people also use language efficiently.11
11 According to linguists, "probably the most important thing to understand" about antecedents "is that [antecedents] are not the elements in the text but are those suggested by it, those
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Case: 13-1994 Document: 00116936604 Page: 19 Date Filed: 12/23/2015 Entry ID: 5964508
One thus commits no offense against the English language by saying that the narrator "described in" Frost's famous poem is the one who "took the road less travelled," even though the narrator's first-person account of his past actions in the poem is not cast in what our colleagues would consider inherently descriptive terms. And, in fact, Congress has itself relied on the "described in paragraph (1)" formulation to refer not just to the inherently descriptive adjectival portion of the prior paragraph but to the adverbial portion, too. See 28 U.S.C § 1441(c)(1)-(2) (in referring to an "action described in paragraph (1)," Congress clearly intended to capture the trailing adverbial portion of paragraph (1), which states that the "entire action may be removed if the action would [otherwise] be removable").
The petitioners' reading finds additional support in the fact that the text of the cross-reference does not expressly state, as one might have expected if Rojas were right, that the only part of § 1226(c)(1) that is relevant to (c)(2) is the part that
concepts being evoked or constructed in the reader's mind." Bonnie Lynn Nash-Webber, Anaphora: A Cross-Disciplinary Survey 6 (Apr. 1977), http://hdl.handle.net/2142/17886. For discussions about how parts of speech do not dictate resolution of the linguistic issue presented here, see Barbara Lust, Introduction, in 1 Studies in the Acquisition of Anaphora: Defining the Constraints 9 (Barbara Lust, ed., 1986); Ruslan Mitkov, Anaphora Resolution § 1.8, at 17 (2013); and Gillian Brown & George Yule, Discourse Analysis 203 (1983) (offering examples in which the antecedent is a part of speech that, if substituted in to the place of the cross-reference, would not yield a well-constructed sentence).
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Case: 13-1994 Document: 00116936604 Page: 20 Date Filed: 12/23/2015 Entry ID: 5964508
denominates the (A)-(D) offenses.12 Rather than straightforwardly
refer to "an alien described in subparagraphs (A)-(D)," Congress
instead expressly referred to "an alien described in paragraph
(1)," even though Congress singled out similar offenses to those
set forth in (A)-(D) in the parallel detention mandate set forth
elsewhere in the IIRIRA. See IIRIRA § 303(b)(3), 110 Stat. 3009-
587 ("The Attorney General may release the alien only if the alien
is an alien described in subparagraph (A)(ii) or (A)(iii)."
(emphasis added)).
Nevertheless, we agree that, standing alone, the words
"an alien described in paragraph (1)" could be read as Rojas reads
them. As a textual matter, the "described in" language in the
cross-reference could be read to refer the reader only to
subparagraphs (A)-(D) of paragraph (1), as they plainly do describe
the alien in (c)(1). One could thus read this cross-reference as
12 Our colleagues argue that Rojas's reading is reinforced by the fact that the "when . . . released" clause is not aligned with subparagraphs (A)-(D), as if the indentation means to tell the reader of the cross-reference in § 1226(c)(2) where to look in (c)(1) for the antecedent. See infra at 72-73. But we do not see how that form of presentation has any helpful bearing on the meaning of (c)(2)'s cross-reference. The limits imposed by the unindented language, including the "when . . . released" clause, affect all aliens who come within the scope of (c)(1). The predicate offenses identified in the indented subparagraphs, by contrast, serve as independent triggers. The alignment thus flows from the structure of (c)(1) without regard to the cross-reference in the follow-on paragraph and thus offers little support for Rojas's reading of that cross-reference.
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Case: 13-1994 Document: 00116936604 Page: 21 Date Filed: 12/23/2015 Entry ID: 5964508
directing the reader to identify the alien whom (c)(1) itself
refers to in characteristically descriptive terms, rather than
directing the reader to identify the alien whom (c)(1) as a whole
calls to mind.13
To determine if Congress chose between the two possible
antecedents to the cross-reference in § 1226(c)(2), we thus must
do what Rojas did: look beyond the words of the cross-reference.
See Rojas, 23 I. & N. Dec. at 121-24 (reviewing the structure of
the act in which § 1226 appears and its legislative history, as
well as the predecessor provisions to § 1226). And it makes
particular sense to do so here, as there is good reason to question
whether Congress would have intended to leave the precise issue
unresolved. To find that Congress did not intend to choose an
antecedent, one would have to believe Congress was content to
let the very executive branch officials that it did not trust to
13 Our colleagues suggest that the Supreme Court has interpreted § 1226(c) as Rojas did, infra at 74-75, in Demore, 538 U.S. at 513. But although the Supreme Court cited (c) as a whole in the first sentence of its opinion, the Court then went on to quote in that sentence the leading language of (c)(1) -- "[t]he Attorney General shall take into custody any alien who" -- without referencing (implicitly or otherwise) any of the language in (c)(2). Our colleagues do not -- and cannot -- argue that the "when . . . released" clause is irrelevant to even (c)(1). We thus do not see how the Court's failure to refer expressly to a clause that obviously applies to (c)(1) in its fly-by paraphrasing of (c)(1) could possibly be said to provide support for the government's view of the particular issue we must decide, which is the relationship between (c)(1) and (c)(2). And that is particularly true as the relationship between the two paragraphs was not even at issue in Demore.
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make certain detention decisions determine the extent of that distrust through their choice between the two possible antecedents. See American Bar Ass'n v. F.T.C., 430 F.3d 457, 469 (D.C. Cir. 2005) (noting that "the sort of ambiguity giving rise to Chevron deference is a creature not of definitional possibilities, but of statutory context" and declining to defer to an agency's interpretation given the sort of ambiguity at issue (quotation marks and citation omitted)). Accordingly, before we conclude that Congress did not speak to this issue, we need to consider the relevant words in context, as is required under Chevron step one.
B. A key part of that context is the structure of the IIRIRA as a whole, as we are obliged to construe § 1226(c) in light of the whole act in which that provision appears. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 484 (2001). The structure of that act, however, is hard to square with Rojas. And thus the structure of the IIRIRA supports the conclusion that Congress chose to refer to an alien "described in paragraph (1)" rather than more specifically to an alien "described in subparagraphs (A)-(D)" because Congress intended to refer to an alien called to mind by the paragraph as a whole. We start first with the structure of § 1226, which is oddly misaligned unless we look beyond subparagraphs (A)-(D) of
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Case: 13-1994 Document: 00116936604 Page: 23 Date Filed: 12/23/2015 Entry ID: 5964508
(c)(1) to the "when . . . released" clause to identify the alien to whom (c)(2) refers. Cf. Whitman, 531 U.S. at 484-86 (declining to defer to an agency's interpretation under Chevron where such interpretation was "so at odds with [the statute's] structure," in that it rendered certain parts of a carefully delimited exception to the agency's otherwise broad discretion "nugatory"). The misalignment arises because Rojas necessarily reads the crossreference to de-link the "Custody" directive in § 1226(c)(1) from the bar to "Release" in (c)(2).
Rojas has this effect because, for example, as the government has previously informed us, "there are a variety of offenses for which an alien may be . . . subject to mandatory detention under [§ 1226(c)(1)(A)], but that may never give rise to a formal charge, let alone an indictment, trial or conviction." See Saysana, 590 F.3d at 14 (quotation marks omitted) (restating the government's argument).14 In consequence, some aliens who fall within subparagraphs (A)-(D) will not be subject to (c)(1) because they will never have even been "released" from criminal custody as the "when . . . released" clause requires. See Rojas, 23 I. & N.
14 For example, an alien may fall within § 1226(c)(1)(A) after receiving a summons and paying a fine for marijuana possession. See Immig. Law Profs. et al. Amicus Br. at 5-6. In addition, aliens defined in § 1226(c)(1)(D) are inadmissible or deportable solely for having engaged in certain terrorist conduct, and so criminal custody is not a necessary precondition to qualifying as a (D)-type alien.
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Case: 13-1994 Document: 00116936604 Page: 24 Date Filed: 12/23/2015 Entry ID: 5964508
Dec. at 122.15 According to Rojas, however, such aliens -- if taken into custody pursuant to § 1226(a) -- would still be subject to the bar to bonded release that (c)(2) establishes.
Rojas necessarily would apply the bar to bonded release to such aliens because Rojas makes an alien's "release" from criminal custody irrelevant to the application of § 1226(c)(2). After all, it is the "when . . . released" clause and not subparagraphs (A)-(D) that ensures that an alien taken into custody pursuant to (c)(1) is an alien who has been "released" from criminal custody. Thus, Rojas incongruously (and without even acknowledging the incongruity) requires one to believe that Congress was so concerned about certain aliens who had never been in criminal custody, as the "when . . . released" clause contemplates, being out and about that it directed the Attorney General to hold them without bond even though Congress left her
15 Under any interpretation of "released," see H.R. Rep. No. 101-681(I), § 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6554, 1990 WL 188857 (stating that the trailing language in § 1226(c)(1) was intended to clarify that the Attorney General must "incarcerate aggravated felons upon release from confinement, regardless of whether such release involves parole, probation, or other forms of supervision." (emphasis added)); Lora, 2015 WL 6499951, at *6; Kotliar, 24 I. & N. Dec. at 125; West, 22 I. & N. Dec. at 1410, some aliens who fall within the definition of subparagraphs (A)-(D) will not have been "released" as they will not have been in criminal custody of any sort.
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Case: 13-1994 Document: 00116936604 Page: 25 Date Filed: 12/23/2015 Entry ID: 5964508
complete discretion to decide not to take them into immigration
custody at all.16
Petitioners' reading avoids this oddly half-hearted
understanding of the detention mandate. Petitioners read the
release-from-criminal-custody constraint that appears outside
subparagraphs (A)-(D) and in the "when . . . released" clause to
limit both the "Custody" and "Release" aspects of the detention
mandate. Under this more natural reading, § 1226 as a whole
coheres quite well. Pursuant to § 1226(a), the Attorney General
would have the discretion to release on bond those aliens she had
the discretion not to take into custody. And, pursuant to §
1226(c), the Attorney General would be mandated to keep in custody
16 Tellingly, there is no indication in the record or legislative history to the IIRIRA that Congress was any more worried about the release by immigration authorities of criminal aliens already in immigration custody than about the failure of immigration authorities to take criminal aliens into custody in the first place. And thus we do not see a basis for concluding that a Congress concerned about "[u]ndetained aliens," S. Rep. No. 104-48 (1995), 1995 WL 170285, at *2, would be inclined to place a release-from-criminal-custody constraint on the discretion to take aliens into immigration custody but not on the discretion to release aliens from such custody. The puzzle, then, is why Congress would have wanted to express its unhappiness with both forms of executive discretion in the partial way Rojas favors. Notably, such different treatment would apply not only to the one type of alien who has never been released from criminal custody that our colleagues choose to mention, see infra at 90, but it would also implicate myriad other types of aliens that the government itself has consistently identified as falling within subparagraphs (A)-(D) but not within the (c)(1) custody directive more broadly. See, e.g., Saysana, 590 F.3d at 14.
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Case: 13-1994 Document: 00116936604 Page: 26 Date Filed: 12/23/2015 Entry ID: 5964508
only those she was mandated to take into custody.17 See Saysana,
590 F.3d at 9, 13-16 (analyzing the meaning of the "when . . .
released" clause and its trailing language in (c)(1) in order to
determine whether an alien was properly held without bond under
(c)(2)). In this way, Congress would have crafted a detention
mandate that, from start to finish, covers the same class of aliens
(whatever the word "when" might mean) that it had identified as a
cause for concern.18
Two other parts of the IIRIRA lend further support to
petitioners' reading of the cross-reference, in which the
"when . . . released" clause in (c)(1) applies as a constraint
17 Our colleagues note that the description in § 1226(c)(2) of when aliens subject to that provision may qualify for release from immigration custody -- when necessary for witness protection -- does not refer expressly to the "when . . . released" clause. See infra at 74. But (c)(2) also does not expressly refer to subparagraphs (A)-(D), yet our colleagues would not dispute that a person with no such predicate offense could not be subject to (c)(2). We thus do not believe this exception clarifies the precise issue at hand in any respect.
18 In describing the "mandatory detention provision" (i.e., § 1226(c)), the panel in Saysana concluded that "the 'when released' language serves th[e] . . . limited but focused purpose of preventing the return to the community of those released in connection with the enumerated offenses [in subparagraphs (A)(D)] . . . ." 590 F.3d at 17 (emphasis added). Saysana thus viewed the "when . . . released" clause as limiting (c) as a whole, including the piece of (c) that "prevents the return to the community" (i.e., prohibits the bonded release) of certain aliens. See also Matter of García-Arreola, 25 I. & N. Dec. 267, 270-71 & n.4 (BIA 2010) (concluding that Saysana held that (c)(2) refers to and incorporates the "when . . . released" clause as a constraint and thereby recognizing the conflict between Saysana and Rojas).
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Case: 13-1994 Document: 00116936604 Page: 27 Date Filed: 12/23/2015 Entry ID: 5964508
across the whole of (c). These parts of the IIRIRA are set forth
in the Transition Period Custody Rules (TPCR). These rules apply
instead of § 1226(c) for a one- or two-year transition period, but
only if they are invoked by the Attorney General. IIRIRA
§ 303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586.
The first instructive part lies in the TPCR's parallel
detention mandate. The TPCR's mandate shares the same structure
as § 1226(c).19 And, notably, like § 1226(c), the predicate
19 The TPCR, enacted in IIRIRA § 303(b)(3), Pub. L. No. 104208, 110 Stat. at 3009-587, provides in part:
(A) IN GENERAL. -- During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who --
(i) has been convicted of an aggravated felony . . . , (ii) is inadmissible by reason of . . . , (iii) is deportable by reason of having committed any offense covered in . . . , or (iv) is inadmissible under . . . , when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. (B) RELEASE. -- The Attorney General may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii) and-(i) the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, or (ii) the alien was not lawfully admitted to the United States, cannot be removed because the designated country of removal will not accept the alien, and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.
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offenses that trigger the custody directive in the TPCR do not require an alien to have been "released" from criminal custody. See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 680-81 (BIA 1997). The TPCR's mandate thus presents the same interpretive question that § 1226(c) presents as to whether the "when . . . released" clause -- and thus its release-from-criminal-custody constraint - in that mandate's custody directive limits that mandate's followon bar to bonded release. And because this mandate presents the same interpretive question, it also presents the same potential structural misalignment.20
Tellingly, the TPCR presents its custody directive (including its "when . . . released" clause) under the heading "In General" and the bar to bonded release under the subsequent heading, "Release." This presentation indicates that the "when . . . released" clause constrains both the custody directive and the bar to bonded release, such that the bar applies to the very people encompassed by the "General" directive, rather than to some people who were not encompassed by that directive at all because they were never "released" from criminal custody.
20 The two paragraphs in the transition rules are linked by a cross-reference ("the alien") that differs from the one our colleagues mistakenly assign such weight in construing § 1226(c)(2) and that is, as a purely textual matter, also not clear.
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Case: 13-1994 Document: 00116936604 Page: 29 Date Filed: 12/23/2015 Entry ID: 5964508
The second instructive part of the IIRIRA lies in section 303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586. This TPCR provision mediates the shift from the transition rules to the permanent regime. The provision clearly provides that § 1226(c) as a whole -- both with respect to its custody directive and its bar to bonded release -- applies only to aliens "released after" the TPCR expires. And the BIA has rightly read this "released after" clause to mean that an alien must have been "released" from criminal custody to be subject to § 1226(c) going forward. See In re Adeniji, 22 I. & N. Dec. 1102, 1108-11 (BIA 1999). This clause thus ensures that a release-from-criminal-custody constraint does now limit the scope of both (c)(1) and (c)(2).
If we applied Rojas's analysis of (c)(2) to the TPCR's equivalent to (c)(2), however, no such "released" constraint would limit the scope of that portion of the TCPR's detention mandate because the "when . . . released" clause in its custody directive would not apply to the mandate as a whole. Under Rojas, therefore, the "released after" clause would -- in this key respect -- make the permanent mandate's bar to bonded release less sweeping than the supposedly more flexible TPCR mandate's bar had been, even though Congress clearly intended the latter to be less
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encompassing.21 No such anomalous narrowing of the detention mandate would occur upon the expiration of the TPCR if, by contrast, the "when . . . released" clause limits the bar to bonded release that appears in both the transition and the permanent rules.22
For these reasons, the structure of the IIRIRA as a whole strongly indicates that Congress did intend for the crossreference in § 1226(c)(2) to reach beyond subparagraphs (A)-(D) to the "when . . . released" clause and thus to refer to an alien taken into custody pursuant to the duty imposed by (c)(1) as a whole.23 And thus the IIRIRA's structure indicates that Congress

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

Sept. 30, 1996) (statement of Sen. Hatch) (explaining that one of

the IIRIRA's managers and conferees agreed to the TPCR because of

the INS's pleas of insufficient resources to comply with the

AEDPA); Garvin-Noble, 21 I. & N. Dec. at 675 (same).

22 Our colleagues try to downplay this anomaly by emphasizing

the carve-outs in the TPCR's bar to bonded release. See infra at

88-89.

But these carve-outs are limited ones.

IIRIRA

§ 303(b)(3)(B), Pub. L. No. 104-208, 110 Stat. at 3009-587. And

we think it unlikely that Congress would have intended for only

the detention mandate in the transition regime -- and not the

detention mandate in the permanent regime -- to apply to some

aliens in such classes of potentially dangerous criminal aliens as

unlawfully admitted aliens with a § 1226(c)(1)(A) predicate and

aliens with a § 1226(c)(1)(D) predicate. It is especially unlikely

that Congress would have intended the TPCR, but not § 1226(c), to

operate without a release-from-criminal-custody constraint on its

detention mandate when the preceding detention mandate did embody

such a constraint. See AEDPA, § 440(c), Pub. L. No. 104-132, 110

Stat. 1214, 1277; see Grodzki v. Reno, 950 F. Supp. 339, 342 (N.D.

Ga. 1996).

23 The "released after" clause would minimize the strange

disjuncture between § 1226(c)(1) and (c)(2) that Rojas unavoidably

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referred to paragraph (1) rather than more specifically to the
subparagraphs within in it because Congress intended to link the
"Custody" and "Release" aspects of the detention mandate so that
they would work together. Before we conclude that Congress clearly
chose the broader antecedent to "an alien described in paragraph
(1)," however, we must still "exhaust the traditional tools of
statutory construction." See Sierra Club v. EPA, 551 F.3d 1019,
1027 (D.C. Cir. 2008). And so we now turn to the legislative
history.
C.
The legislative history confirms that Congress intended
the cross-reference in § 1226(c)(2) to refer to an alien taken
into custody pursuant to the duty imposed by (c)(1) as a whole
creates, but we presume the coherence of the permanent detention mandate was not intended to depend on the triggering of an ancillary and potentially never operative clause in the TPCR. Whitman, 531 U.S. at 468. Regardless, the "released after" clause would do nothing to avoid the anomaly of the permanent mandate being less sweeping in a key respect than the transition mandate had been.
Our colleagues, but not the government or Rojas itself, contend that the canon against surplusage supports Rojas's reading of the cross-reference in § 1226(c)(2) because otherwise "when . . . released" would be duplicative of "released after." See infra at 75-76. But to the extent this argument has any force, it has it only if "when" has a time-limited meaning. The surplusage concern thus provides no basis for concluding that Rojas is right to treat the "when . . . released" clause as a whole as irrelevant to (c)(2). As a result, we consider this surplusage argument when we turn to the issue of what "when" means -- an issue on which we owe the BIA no deference and which we must confront only if the "when . . . released" clause does apply to all of (c).
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rather than only to an alien described in subparagraphs (A)-(D).

And thus the legislative history helps to make clear that the

"when . . . released" clause -- and whatever limitations it

imposes -- applies across the whole of (c). This conclusion

follows from the legislative history directly tied to the IIRIRA

and from the many precursors to § 1226(c). The text and history

of those precursors show that Congress intended for those versions

of the detention mandate to operate in just the linked

manner that Rojas rejects in construing (c), and the evidence also

indicates that Congress did not mean to alter this aspect of the

longstanding scheme in passing the IIRIRA. Milner v. Department

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

of legislative history believe that clear evidence of

congressional intent may illuminate ambiguous text."); see

also Goldings v. Winn, 383 F.3d 17, 21 (1st Cir. 2004) ("[I]f the

statute's legislative history reveals an unequivocal answer as to

the

statute's

meaning,

we

do

not

look

to

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

1.

The title to § 1226(c) -- encompassing both (c)(1)'s

"Custody" directive and (c)(2)'s "Release" bar -- is "Detention of

Criminal Aliens." The conference report to the IIRIRA follows the

language of that overarching title in describing in unqualified

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

Case: 13-1994 Document: 00116936604 Page: 33 Date Filed: 12/23/2015 Entry ID: 5964508

detain" certain aliens. The report then sets forth one

qualification to that requirement in the next sentence and another

qualification in the third sentence, stating that "[t]his

detention mandate applies whenever such an alien is released from

imprisonment, regardless of the circumstances of the

release."

H.R. Conf. Rep. No. 104-828 (1996), 1996 WL

563320, at *210-11. And finally, the report states that "[t]his

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

Attorney General's custody" in one limited circumstance. See id.

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

of the phrase "[t]his detention mandate" to refer to a start-to-

finish detention regime that is limited across-the-board by the

"when . . . released" clause. See Rojas, 23 I. & N. Dec. at 119,

122-23 (describing the "mandatory detention aspects of the

statute" as arising from both the bar to bonded release and the

custody directive). After all, the report expressly attributes

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

part of it.

But even if, as our colleagues contend, the report's

reference to "[t]his detention mandate" is only to the differently

worded and more limited duty to "take into custody" certain aliens

set forth only in § 1226(c)(1), see infra at 77-78, the report

would then merely restate the question that we must decide: whether

Congress intended for the bar to bonded release set forth in (c)(2) - 33 -

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to incorporate the conditions that plainly limit the application
of the custody directive in (c)(1).24 If so, the remaining
legislative history that actually concerns the relationship
between the custody and release aspects of the detention mandate
convinces us that Congress clearly did so intend, when this history
is read against the strong structural reasons to conclude that
Congress chose to refer in (c)(2) to "paragraph (1)" rather than
subparagraphs (A)-(D) in order to encompass the same aliens under
both (c)(1) and (c)(2).
Just prior to conference, a leading Senate sponsor of
the IIRIRA described the bill as "ensur[ing] that aliens who commit
serious crimes are detained upon their release from prison until
they can be deported . . . ." 142 Cong. Rec. S10572-01 (daily ed.
Sept. 16, 1996), 1996 WL 522794 (statement of Sen. Simpson)
(emphasis added). And it should be no surprise that Senator
24 Our colleagues' reading of the fourth sentence of the report, see infra at 77-78, takes "the Attorney General's custody" referenced in that sentence to be any custody, even if effected as a matter of discretion under § 1226(a), rather than to be the mandatory custody of the Attorney General under § 1226(c) that -on our colleagues' reading of the report -- the preceding sentences had necessarily just referenced. And our colleagues read the reference to "such an alien" in that sentence to be a reference only to an alien who has committed an (A)-(D) offense rather than to an alien who was taken into custody pursuant to the duty imposed by (c)(1) as a whole. See id. But the text does not resolve whether our colleagues are right to read these words this way, as these words on their own do not tell us whether the report treats the "when . . . released" clause as if it were incorporated as a limitation on the bar to bonded release.
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Simpson described the bill this way. Congress stated in a key report right before conference that the new measure was intended to "restate[]" the provisions of the old statute "regarding the detention of an alien convicted of an aggravated felony . . . ." See H.R. Rep. 104-469(I) (1996), 1996 WL 168955, at *230. And, as we next explain, each prior version of the detention mandate (including the immediate precursor to the IIRIRA) similarly treated the two analogous directives to the ones that subsection (c) contains as operating in tandem.
2. The text and legislative history to the precursors to § 1226(c) clearly show that Congress intended to link the custody directive and the bar to bonded release in these prior detention mandates in just the way that Rojas rejects in construing § 1226(c). And interpreters of those precursors –- including both the BIA and the district courts –- so read them. We start with the 1988 mandatory detention statute, which provided: "The Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien's sentence for such conviction. Notwithstanding subsection (a) [the then-equivalent of § 1226(a)], the Attorney General shall not release such felon from custody." Anti-Drug Abuse Act of 1988, § 7343(a), Pub. L. No. 100-690, 102 Stat. 4470. The text is most naturally read as limiting the bar to bonded release to the
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"felons" whom the Attorney General was required to "take into
custody." And not long after its enactment, the BIA read the
provision just that way, by treating the "upon completion"
clause (the then-equivalent of the "when . . . released" clause) in
the 1988 mandate's custody directive as if it conditioned that
mandate's "such felon" clause (the then-equivalent of "an alien
described in paragraph (1)") in the follow-on bar to
bonded release from immigration custody. Matter of Eden, 20 I. &
N. Dec. 209, 211 (BIA 1990).25
25 The BIA's decision in Eden, as our colleagues point out, did not involve the particular timing element involved in this case. But that is no matter as Eden is directly on point as to the precise issue for which the government seeks Chevron deference -- that is, the relationship between the "custody" and "release" aspects of the present detention mandate. Our colleagues contend otherwise as follows. Our colleagues suggest that even if the BIA in Eden had reached the same result by concluding, instead, that once an aggravated felon was in immigration custody he could not then be released on bond (regardless of whether he had ever been released from criminal custody), the BIA still would have had reason to consider the meaning of the "upon completion" clause. And that is because, our colleagues contend, the BIA would have had an interest in clarifying whether the Attorney General had the authority to place an alien in immigration custody at all, even discretionarily, while that alien was still serving his criminal sentence. See infra at 93-94. But the BIA had no need to clarify the meaning of the "upon completion" clause for that distinct purpose. And that is because, as the BIA in Eden acknowledged, an alien could have been taken into immigration custody under the discretionary detention authority conferred by then-equivalent to § 1226(a). In fact, the immigration judge in Eden granted discretionary bond to the alien in that case under the thenequivalent of § 1226(a), which occasioned the appeal to the BIA by the executive. See Eden, 20 I. & N. Dec. at 210, 212 (noting that the immigration judge had concluded that the alien "had been properly detained under [the then-equivalent of § 1226(a)]" and
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The 1990 amendments to the 1988 statute then codified Eden, which was decided months earlier, and the House report to the amendments espoused that same view of the relationship between the two clauses. That report characterized "current law" (that is, the detention mandate set forth in the 1988 statute) as "requir[ing] [the government] to incarcerate alien aggravated felons without bond immediately upon completion of the alien's criminal 'sentence.'" H.R. Rep. No. 101-681(I), § 1503, at 148 (1990) (emphasis added); cf. United States v. Bd. of Comm'rs of Sheffield, Ala., 435 U.S. 110, 129-35 (1978).
Moreover, in codifying Eden, Congress modified the thenequivalent of § 1226(c)(1) in order to clarify the scope of the then-equivalent of (c)(2). Congress did so by making clear that aliens were "released" from criminal custody and thus could be held without bond at the moment they were released from incarceration, even though they might still be on parole or supervised release.26 In revising the "upon completion" clause, Congress necessarily treated the then-equivalent of the
framing the question on appeal in terms of whether "authority to detain [an alien while he was on parole] pursuant to [the thenequivalent of § 1226(c)] . . . exist[ed]" (emphasis added)).
26 Congress replaced the "upon completion" clause with "upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense)." Immigration Act of 1990, § 504(a), Pub. L. No. 101-649, 104 Stat. 4978, 5049-50; H.R. Rep. No. 101-681(I), § 1503, at 148 (1990).
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"when . . . released" clause and its trailing language as limiting
the follow-on bar to bonded release. Otherwise, Congress would
have had no need to tinker with that language at all in light of
the discretion to place aliens in immigration custody that the
Attorney General otherwise had. And, by passing the amendments,
Congress necessarily retained (albeit in revised form) that
limitation on the operation of both the custody directive and the
bar to bonded release.27
Finally, in 1996, not long before the IIRIRA's
enactment, Congress further amended the mandatory detention
statute while again retaining the same structure, which again
naturally reads as if those barred from release are those that
must be picked up. See AEDPA, § 440(c), Pub. L. No. 104-132, 110
27 We do not find our colleagues' contrary reading of the 1990 House report -- in which Congress was supposedly responding to a concern that the "upon completion" clause might be read to displace, as to aliens on parole, the Attorney General's general and unqualified grant of discretionary authority to take aliens into immigration custody, see infra at 94-95 -- persuasive. Congress was responding to Eden and the immigration judge in that case did clearly conclude that the Attorney General had the authority to place an alien on parole in immigration custody under the then-equivalent of § 1226(a). See Eden, 20 I. & N. Dec. at 210. In offering a contrary reading of the report, our colleagues ignore the introductory sentence of the relevant portion of the report, which we read to supply the context for the sentences that follow: "Current law . . . requires INS to incarcerate alien aggravated felons without bond immediately upon completion of the alien's criminal 'sentence.'" H.R. Rep. No. 101-681(I), § 1503, at 148 (1990) (emphasis added). We therefore read the sentences that follow to be referring to the authority to incarcerate aliens without bond under the mandatory detention provision. See id.
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Stat. 1214, 1277 (retaining "upon release"/"such felon"
structure). And prior to the passage of § 1226(c), district courts
not surprisingly treated the retained "upon release" clause as if
it conditioned the retained "such felon" clause, just as the BIA
and Congress itself had treated the analogous clauses in prior
detention mandates.28
We generally "assume that Congress is aware of existing
law when it passes legislation," see Miles v. Apex, 498 U.S. 19,
32 (1990), so we should assume that Congress understood the
prevailing interpretation of the relationship between the custody
28 District courts held that the AEDPA did not apply retroactively to aliens who had been convicted and released from incarceration before its enactment in part because the "upon release" clause implicitly limited the application of the detention mandate, including the aspect of the mandate governing bonded release, to people taken into custody after the AEDPA's passage. See, e.g., DeMelo v. Cobb, 936 F. Supp. 30, 36 (D. Mass. 1996), vacated as moot after the IIRIRA's passage, 108 F.3d 328 (1st Cir. 1997) (per curiam) (concluding "that the language 'upon release of the alien from incarceration' implies a time of release after the effective date of the Act" and thus makes the detention mandate as a whole prospective in application); Villagomez v. Smith, No. C96-20 1141C, 1996 WL 622451, at *2 (W.D. Wash. July 31, 1996) (unpublished) (stating that the AEDPA's detention mandate as a whole cannot apply to aliens convicted and released before its enactment because of the "straightforward" "upon release" language); Montero v. Cobb, 937 F. Supp. 88, 95 (D. Mass. 1996); In re Reyes, Case No. B-94-80 (S.D. Tex. May 31, 1996); see also Grodzki, 950 F. Supp. at 342 (holding that the "upon release" language "at least implies that custody commence within a reasonable time after release from incarceration" and thus that petitioner was entitled to individualized bond hearing given the lapse in time between when he was released from incarceration and when he was taken into immigration custody).
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directive and the bar to bonded release to be a linked one. After
all, courts were consistently interpreting that relationship post-
AEDPA in the same way Congress and the BIA had interpreted that
relationship in the similarly worded clauses pre-AEDPA.29 And
while Congress broadened the cross-reference in the present
29 Our colleagues, see infra at 91-92, following Rojas's lead, see Rojas, 23 I. & N. Dec. at 122-24, find instructive the 1991 revision to an exception to the bar to bonded release contained in the 1990 detention mandate. See Immigration Act of 1990, § 504(a), Pub. L. No. 101-649, 104 Stat. 4978, 5049-50; Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), Pub. L. No. 102-232, 105 Stat. 1733, 1751. Rojas contends that the text of the exception to the bar to bonded release (set forth in the revised version of paragraph (B)) shows that the "upon release" constraint in the then-effective detention mandate (set forth in paragraph (A)) limited neither the class of lawfully admitted aliens referenced in (B)'s exception nor "such felon[s]" referenced in (A)'s bar to bonded release. 23 I. & N. Dec. at 124. But as the legislative history just described shows, in crafting that 1990 detention mandate, Congress plainly did intend for the "upon release" requirement to modify the "such felon[s]" who were subject to (A)'s bar to bonded release. We thus see no basis for concluding that Congress suddenly intended to alter the relationship between the "upon release" and "such felon" clauses in paragraph (A) in 1991 by way of a technical amendment to paragraph (B) that does not appear to have been made for any such consequential purpose. See Cong. Research Serv., Summaries for Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (H.R. 3049, 102nd Cong.), https://www.govtrack.us/congress/bills/102/hr3049/summary (summarizing the 1991 revision as applying the exception in (B) to all "lawfully admitted aliens" as opposed to just aliens "lawfully admitted for permanent residence"). Consistent with a modest understanding of the 1991 technical revision's import, we read (B) -- by virtue of the fact that (A) is "subject to paragraph (B)" -- to refer merely to a subset of "such felon[s]" in (A), which is to say felons taken into immigration custody "upon release." In any event, we question the salience of paragraph (B) for present purposes given that it had been deleted by the AEDPA by the time Congress got around to enacting the IIRIRA, see AEDPA § 440(c), 110 Stat. at 1277.
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detention mandate to account for the fact that not all aliens subject to the present mandate qualify as "felons," we do not think Congress thereby intended to alter fundamentally the relationship between the custody directive and the bar to bonded release. In fact, the evidence is to the contrary. See H.R. Rep. 104-469(I) (1996), 1996 WL 168955, at *230 (stating that § 1226(c) was intended to "restate[]" the provisions of the immediately preceding detention mandate codified in the AEDPA).
3. In countering the substantial evidence from the legislative history that points against Rojas, the government and our colleagues give great weight to an April 1995 report from the Senate Committee on Governmental Affairs. See S. Rep. No. 104-48 (1995), 1995 WL 170285. The Supreme Court relied on that report in Demore v. Kim, 538 U.S. 510, 518-22 (2003), to explain why Congress could have had a reason for mandating the detention without bond of criminal aliens in order to respond to the contention that such mandatory detention was inherently arbitrary. In addressing that constitutional challenge to Congress's power to enact a detention mandate of any scope, the Supreme Court did not purport to enlist that report to describe the class of aliens subject to the mandate § 1226(c) actually imposed. And for good reason.
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That 1995 report was not linked to any particular bill. And that report predates not only § 1226(c) but also the immediate precursor to (c), which used the same "upon"/"such felon" language that tracked the 1988 mandate and its revisions that we have just described. The 1995 Senate report cannot offer any support, therefore, for the suggestion that the present detention mandate must have de-linked the custody directive and bar to bonded release that had been linked in those prior versions.
And, in fact, the report does not speak to that issue at all. To be sure, that report does show that its authors were "concerned with detaining and removing all criminal aliens," Rojas, 23 I. & N. Dec. at 122 (emphasis in original); see also Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 160 (3d Cir. 2013). But in stating that general concern, the report does not demonstrate that Congress intended to paint with the broad brush the government suggests that it used in enacting § 1226(c)(2). See Saysana, 590 F.3d at 16-18 ("The mandatory detention provision does not reflect a general policy in favor of detention . . . .").
The report does also suggest a variety of ways to address the concern that "criminal aliens" (i.e., aliens with deportable offenses) do not show up to removal proceedings. These suggestions range from increasing detention bed space to accommodate enhanced detention efforts generally, to expediting the removal process so that final adjudication occurs while an alien is still in criminal
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custody, to expanding the role of mandatory detention (§ 1226(c))
in relation to discretionary detention (§ 1226(a)) by subjecting
all criminal aliens to (c). See S. Rep. No. 104-48 (1995), 1995
WL 170285, at *3-4, *21, *23, *31-32. The report nowhere
indicates, however, that Congress wanted to expand the role of
mandatory detention haphazardly by de-linking (c)(1) and (c)(2),
such that the bar to bonded release would apply to persons who
were not even subject to the custody directive at all because they
had never been in the criminal custody from which they were then
"released" as (c)(1) contemplates. See generally id.30
30 Our colleagues find support for Rojas in Congress's evident intent to make it more difficult for certain criminal aliens to obtain relief from a final order of removal, see infra at 82-84, on the apparent assumption that the risk of flight is greater for aliens who are more certain to be removed (and this class is an especially dangerous one). But the petitioners have not yet faced a definitive adverse judgment in their removal proceedings and so may not in fact be removed. Moreover, aliens taken into custody under § 1226(c) may also have a basis for discretionary relief in the form of cancellation of removal, see Lora, 2015 WL 6499951, at *3, *12, or some other form of relief, such as a U Visa (a type of visa set aside for victims of certain crimes). We thus see no justification for the inference that Congress, in making it harder to get relief from a final removal order, must have intended to deny bond to those who might not be ordered removed at all. In fact, as Congress surely knows, an alien's inability to get bonded release can limit the alien's capacity to obtain legal representation or otherwise obtain relief from removal, see Robert A. Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 10 (2008); Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013), making the impact of mandatory detention prior to a final removal order especially harsh in cases where avenues for relief following such order have been curtailed.
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4. In sum, Rojas offers only one reason for concluding that these petitioners may not be given a bond hearing and that reason has nothing to with what the word "when" means. On Rojas's view, § 1226(c)(2) applies to any alien who has committed an (A)-(D) offense, regardless of whether the alien was ever in and "released" from criminal custody as (c)(1) requires, let alone "when" the alien was released from it. And that is because Rojas holds that the "when . . . released" clause as a whole is irrelevant to (c)(2). But when we consider the text of (c)(2) in light of the structure of the IIRIRA as a whole and the legislative history, we do not believe that Rojas offers a tenable construction of the detention mandate. After applying the traditional tools of statutory interpretation, we conclude that Congress did clearly speak to the precise issue Rojas addressed regarding the relevance of the "when . . . released" clause to the bar to bonded release in § 1226(c)(2). And Congress clearly addressed it in the opposite way from Rojas. That is, Congress clearly intended for the crossreference in (c)(2) to refer to aliens who have committed (A)-(D) offenses and who have been taken into immigration custody "when . . . released" from criminal custody, in accordance with the Attorney General's duty under (c)(1).
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In concluding that Rojas does warrant deference, our colleagues repeatedly emphasize that it is reasonable to conclude that the timeliness of an alien's immigration custody is not determinative of whether the detention mandate applies. But it is important not to confuse the outcome that results from Rojas's interpretation of the mandate's scope with the interpretation itself.
For while it is true that Rojas's conclusion that the "when . . . released" clause as a whole is irrelevant to § 1226(c)(2) necessarily makes timeliness irrelevant to the operation of (c)(2), Chevron is clear that it is the agency's interpretation of the statute and not the outcome that follows from that interpretation that deserves our deference. See Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191-92 (2d Cir. 2005) (declining to defer to BIA's summary affirmance of an immigration judge decision because summary affirmance indicates approval of only "the result reached in the decision" rather than "all of the reasoning of that decision" and thus does not contain "the sort of authoritative and considered statutory construction that Chevron deference was designed to honor"). And that must be the case, as the reason we defer to agency interpretations is precisely because we are supposed to give weight to their reasoned judgment.
For Chevron purposes, therefore, the contention that the legislative history or the structure of the IIRIRA does not compel
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the timing-based outcome that the petitioners favor amounts to a non sequitur. What matters is that Rojas implausibly ascribes an intention to Congress to place greater limits on the Attorney General's discretion to take aliens into custody in the first place than on the Attorney General's discretion to release them once they are in custody. And so, having determined under Chevron step one that Rojas's interpretation of the relationship between (c)(1) and (c)(2) conflicts with Congress's evident intent and thus does not merit deference, we now turn to the question that remains: the meaning of (c)(1)'s "when . . . released" clause.
III. In taking up this issue, we confront the question that Rojas never reaches: does "when" impose a time limit for taking an alien into custody pursuant to (c)(1) that renders (c)(2)'s bar to bonded release inapplicable to these petitioners due to the remoteness of their release from criminal custody? See Sylvain, 714 F.3d at 157 n.9 (stating that Rojas "did not explicitly interpret" the word "when"). The government argues that the word "when" imposes no such time limit, either because "when" means "if" or "any time after" or because Congress at most used the word "when" to trigger a duty to act promptly that persists indefinitely. The BIA, however, has never adopted either view, and such litigating
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positions are not entitled to Chevron deference.31 See United
States v. Mead Corp., 533 U.S. 218, 231 (2001). We thus must
decide the clause's meaning on our own. See Santana v. Holder,
731 F.3d 50, 53 (1st Cir. 2013).
To do so, we first consider whether the word "when" as
used here is merely a synonym for "if" or "any time after" and
consequently conveys no sense of immediacy at all. We then
consider whether, even if Congress intended for the word "when" to
convey immediacy, the word merely reflects a legislative
preference for timely action and thus does not impose a true time
limit.
31 Although the government suggests that Rojas construed "when" to mean, in effect, "any time after," Rojas did not, as it held that the word was irrelevant to § 1226(c)(2)'s operation. The government reads too much into Rojas's assertion that the "when . . . released" clause "specifies[s] the point in time at which [the Attorney General's] duty [under (c)(1)] arises." See Rojas, 23 I. & N. Dec. at 121. In so stating, Rojas merely clarified that "when . . . released" modifies "take into custody" rather than the "alien" in (c)(1), not that "when" imposes no deadline. In fact, the BIA has seemed to set forth a time-limited meaning of "when" several times. See id. at 122; see also Matter of Saysana, 24 I. & N. Dec. 602, 607 (BIA 2008); Matter of ValdezValdez, 21 I. & N. Dec. 703, 708 (BIA 1997). The government's interpretation of the meaning of the word "when" is thus not entitled to Chevron deference. Given that the BIA's position on the meaning of "when" is at worst inconsistent and at best consonant with petitioners' time-limited reading, we also would not defer under Skidmore to such an interpretation, assuming Skidmore deference even applies to the government's litigating position in this case. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (stating that the opinion of an agency is entitled to respect only to the extent it has the "power to persuade").
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A.

We begin our analysis of the first issue with the

observation that Congress chose a word, "when," that naturally

conveys some degree of immediacy, Castañeda, 769 F.3d at 42-44, as

opposed to a purely conditional word, such as "if." See Webster's

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

"just after the moment that"). Consistent with the conclusion

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

convey immediacy, § 1226(c)(1) says "when the alien is released,"

not "when the alien has been released" or "after the alien is

released."

Similarly, the structural placement of the

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

simply to announce a condition, as the clause does not directly

follow "any alien who." Cf. Rojas, 23 I. & N. Dec. at 128-29.32

If Congress really meant for the duty in (c)(1) to take

effect "in the event of" or "any time after" an alien's release

from criminal custody, we would expect Congress to have said so,

given that it spoke with just such directness elsewhere in the

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

32 The Rojas concurrence suggested that the "when . . . released" clause in (c)(1) does not impose a timing constraint because it modifies only the offenses denominated in subparagraphs (A)-(D) of (c)(1), rather than the duty to "take into custody." See Rojas, 23 I. & N. Dec. at 128-29 (Moscato, concurring and dissenting). Neither the BIA, the government, nor our colleagues advance this view, however, and we see no basis for this view given the structural placement of the clause.
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removed under the prior order at any time after the reentry." (emphasis added)); cf. United States v. Willings, 8 U.S. (4 Cranch) 48, 54 (1807) (concluding that Congress intended the word "when" in a federal maritime statute to mean "if" or "in case" because the statute contained clear indicia of conditional intent (for example, the phrase "in every such case" recurred)). In fact, the BIA itself noted in Rojas that "[§ 1226(c)] does direct the Attorney General to take custody of aliens immediately upon their release from criminal confinement." Rojas, 23 I. & N. Dec. at 122 (emphasis added).
As to just how promptly Congress intended for the government to act, there is more uncertainty, as the panel recognized when it construed the word "when" to mean "within a reasonable time after." See Castañeda, 769 F.3d at 44. But given the unexplained, years-long gap between when these petitioners were released from criminal custody and when they were taken into immigration custody, we need not define the bounds of reasonableness in this case as they were plainly exceeded.33 Thus,
33 The government and our colleagues contend that it is implausible that Congress would have exempted aliens from § 1226(c) merely in consequence of the remoteness of their release from criminal custody given that such a gap in custody might be attributable to other forces. See Gov. Br. at 8-9; see infra at 83. For example, the government and our colleagues point to evidence that some state and local authorities may frustrate the ability of the Attorney General to place aliens in custody in a timely fashion under (c)(1). Id. But the agency charged with
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for present purposes, it is enough to conclude that Congress used
the word "when" to convey some degree of immediacy and not simply
to set forth a condition.34
administering the Act has not purported to define the word "when" or its temporal bounds, let alone how such period of time should be tolled in the circumstances the government and our colleagues identify or in other circumstances that might arise, such as when an alien receives a non-carceral sentence. See Lora, 2015 WL 6499951, at *6; Kotliar, 24 I. & N. Dec. at 125; West, 22 I. & N. Dec. at 1410. We do not believe that such fact-specific questions about tolling provide a basis for concluding that "when" is best read in context to mean "if" or "any time after," given the other evidence of legislative intent.
34 Our colleagues contend that the petitioners' view of "when" would be at odds with the canon against surplusage in light of the "released after" clause of the IIRIRA § 303(b)(2). But we do not see how. At worst, the "released after" clause is a clarifying provision in an ancillary and potentially never operative measure. Cf. In re Fahey, 779 F.3d 1, 7 (1st Cir. 2015) (indicating that language that is not strictly speaking necessary, if nonetheless clarifying, need not be thought to run afoul of the canon against surplusage). That is because the "released after" clause appears to have been intended to clarify which rules would apply to existing detainees when the TPCR expired. Aliens who were immediately taken into immigration custody upon their release from criminal custody during the transition period were subject to the restrictions on bonded release imposed by the TPCR. While the IIRIRA § 303(b)(2) did state the effective date of the new permanent rules § 1226(c) set forth, the "effective date" clause did not make clear whether the permanent rules or the by-thenexpired TPCR rules would govern those persons in mandatory detention when the TPCR expired. Thus, the "released after" clause in the IIRIRA § 303(b)(2) would seem to have been intended to perform the useful function of making clear -- as part of a savings clause, see Garvin-Noble, 21 I. & N. Dec. at 681; Adeniji, 22 I. & N. Dec. at 1110-11 (emphasizing "uncertainty . . . in discerning how Congress expected the [released after] provision to operate," given that Congress may have "intended" but inadvertently "neglected" to incorporate this provision into a broader savings clause in the TPCR) -- that § 1226(c) would apply only to aliens released from criminal custody "after" the transition period. Conversely, the old TPCR rules for mandatory detention would
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B. The part of the conference report to the IIRIRA that describes § 1226(c) supports the conclusion that Congress did not intend for the word "when" to have a purely conditional meaning. And so, too, does the legislative history to (c) that indicates it was meant to mirror the precursor mandates, each of which used a timing word that was understood to convey immediacy. The conference report states that "[t]his detention mandate applies whenever such an alien is released from imprisonment, regardless of the circumstances of the release." H.R. Conf. Rep. No. 104-828 (1996), 1996 WL 563320, at *210-11 (emphasis added). As used in that report, "whenever" is most plausibly read to mean at the time that the alien is released from imprisonment, whenever that event may occur, rather than simply "if" that event occurs. Indeed, had Congress intended by the use of "whenever" to mean "if" or "any time after," we again would expect the report to have said "after such alien is released" or "whenever such an alien has been released."
continue to govern aliens held in mandatory detention pursuant to those transition rules. Thus, the "released after" clause is by no means unnecessary if "when" conveys immediacy. A misplaced concern about surplusage thus should not dictate a meaning of the word "when" that is so at odds with the text, structure, and legislative history. See King v. Burwell, 135 S. Ct. 2480, 249293 (2015).
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Consistent with this conclusion, the legislative history to the subsection that would become § 1226(c) indicates that Congress intended to "restate[]" the provisions of the direct precursor to (c) "regarding the detention of an alien." See H.R. Rep. No. 104-469(I) (1996), 1996 WL 168955, at *230. And that direct precursor, which is codified in the AEDPA, used the word "upon," which was used in and understood to have conveyed immediacy in all the detention mandates preceding § 1226(c).35
For example, the House Report on the 1990 amendments to the 1988 mandatory detention statute characterized "current law" as "requir[ing] [the] INS to incarcerate alien aggravated felons without bond immediately upon completion of the alien's criminal 'sentence.'" H.R. Rep. No. 101-681(I), § 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6554, 1990 WL 188857 (emphasis added); cf. Sheffield, 435 U.S. at 129-35. And the district courts that construed the word "upon" in the AEDPA's detention mandate reached the same conclusion as Congress had about the 1988 measure -- its use of the word "upon" conveyed immediacy. See, e.g., DeMelo, 936 F. Supp. 30, 36 (D. Mass. 1996), vacated as moot after the IIRIRA's passage, 108 F.3d 328 (1st Cir. 1997).
35 In fact, as we have noted, just prior to conference on the IIRIRA, a leading Senate sponsor of the IIRIRA described § 1226(c) as "ensur[ing] that aliens who commit serious crimes are detained upon their release from prison until they can be deported . . . ." 142 Cong. Rec. S10572-01 (daily ed. Sept. 16, 1996), 1996 WL 522794 (statement of Sen. Simpson) (emphasis added).
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In sum, the legislative history as a whole indicates
that Congress used the word "when" just as it had used the word
"upon": to convey a sense of immediacy. We thus conclude that the
legislative history reinforces the textual indication that
Congress did not intend for the word "when" to be merely a synonym
for "if" or "any time after."
C.
That brings us to the question of whether Congress
intended for the word "when" merely to express a legislative
preference for timely action or whether it was instead intended to
impose a deadline for the application of the bar to bonded release
set forth in § 1226(c). To answer this question, we consult the
principles underlying the so-called loss-of-authority canon.36
36 Our colleagues, in concluding that "when" merely expresses a preference for timely action, do not rely on loss-of-authority principles. See infra at 98-99. They instead reason that even if Rojas is wrong, whether an alien was timely taken into immigration custody is just an exogenous fact and thus does not have any bearing on the class of aliens to whom § 1226(c) applies. See id. If we follow, the suggestion appears to be that the word "released" and the trailing portions of the "when . . . released" clause do refer to something endogenous to the alien and thus do characterize the alien to whom (c) applies, even though the word "when" does not. But aliens do not release themselves any more than they choose when they are released. We thus do not see how the line between exogenous and endogenous facts could be drawn so finely as to attribute to Congress an intent to carve up the "when . . . released" clause in this odd way, even if there were any textual basis for construing the Attorney General's duty under (c) as being limited by facts endogenous to the alien rather than by all relevant ones. And, as noted, there is no textual basis for concluding that the word "when" -- and whatever limitations
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That interpretive aid comes into play where Congress has mandated that the government "shall" do something within a certain time frame and there is a question about the consequence Congress intends for the government's failure to complete the required action within that time frame. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-59 (2003). The canon generally counsels that: "[i]f a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction." Id. at 159. The animating principle behind this canon is one of plausibility given the context: "if Congress had meant to set a counterintuitive limit on authority to act, it would have said more than it did." Id. at 163 (emphasis added).
The government contends that § 1226(c) "contains no sanction for late executive action," Gov. Br. at 10, and that it would be counterintuitive to render (c) inapplicable when the
that word imposes -- does not constrain the application of (c)(1), as the word clearly and unconditionally modifies the Attorney General's directive to "take into custody." The only possible textual hook for distinguishing between endogenous and exogenous facts, therefore, resides in (c)(2)'s "described in" language. But making a distinction on this basis for the purpose of understanding the bounds of the Attorney General's duty under (c) would still create an arbitrary line-drawing problem. And such a distinction would also incongruously de-link the custody directive in (c)(1) from the bar to bonded release in (c)(2) by subjecting the custody directive to a timing constraint not applicable to the bar to release.
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executive is late in taking an alien into custody given the detention-maximizing purpose underlying (c). But we do not agree.
This case is not like those in which enforcement of a time limit would require a court to fashion a coercive sanction that appears nowhere in the text and that would completely strip the government of authority "to get [the] . . . job done," id. at 160. See, e.g., id. at 156 (proposed sanction was complete loss of ability to direct award of retirement benefits to late-assigned beneficiaries); Brock v. Pierce Cty., 476 U.S. 253, 258 (1986) (proposed sanction was complete loss of ability to recover misused federal funds); Dolan v. United States, 560 U.S. 605, 609 (2010) (proposed sanction was complete loss of ability to order persons convicted of certain crimes to pay restitution to victims). Rather, the putative time limit at issue here appears in an express exception, § 1226(c), to an otherwise broad grant of discretionary authority, § 1226(a), regarding the custody and release of aliens awaiting the outcome of removal proceedings, just as all the precursors to § 1226(c) were framed as exceptions to thenequivalents of § 1226(a). Thus, enforcement of the time limit here, unlike in the other cases in which loss-of-authority principles were applied, would merely render inapplicable an express limit on a grant of authority and thus necessarily result in a reversion to that authority.
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Given this distinct context, the key question is whether Congress intended for the requirement that the Attorney General timely take aliens into immigration custody to circumscribe the scope of this exception. As a textual matter, there is no indication that Congress intended for subparagraphs (A)-(D) in § 1226(c)(1) but not the "when . . . released" clause to define the outer limit of the Attorney General's discretion that the exception in (c) establishes. The text of (c) also does not itself indicate that the timeliness of an alien's custody is merely a procedural requirement that need not be complied with in a strict sense.
There remains the question whether it nevertheless would be counterintuitive to read "when" to circumscribe the exception's scope. The express presentation of § 1226(c) as an exception to (a) that applies only if all of its conditions are met accords with the quite sensible intuition that Congress did mean to distinguish between aliens who fall within the scope of (a) and aliens who fall within the scope of (c) on the basis of the timeliness of their immigration custody.37 In construing the
37 That Congress intended to craft a relatively narrow detention mandate is hardly implausible. After all, Congress did not adopt the recommendation in the 1995 Senate report to expand the class of aliens subject to mandatory detention to "all criminal aliens." See S. Rep. No. 104-48 (1995), 1995 WL 170285. Rather, setting aside any limitations imposed by the "when . . . released" clause, Congress limited mandatory detention under § 1226(c) to
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intended scope of another aspect of § 1226(c), we explained in
Saysana that "[i]t is counter-intuitive to say the least to say
that aliens with potentially longstanding community ties are, as
a class, poor bail risks." See Saysana, 590 F.3d at 17. And we
added that "by any logic, it stands to reason that the more remote
in time a conviction becomes and the more time after a conviction
an individual spends in a community the lower his bail risk is
likely to be." See id. at 17-18.38
Thus, in this context, we conclude that the timing word
"when" is best read to impose an outer limit on the exception to
the categorical bar to discretionary release carved out by
§ 1226(c). In consequence, aliens like petitioners, who due to
the unexplained years-long gap between their criminal custody and
aliens who have committed certain enumerated offenses and who were "released after" the TPCR expired (by virtue of the IIRIRA § 303(b)(2)); see also Saysana, 590 F.3d at 15-16 (holding that § 1226(c)(1) is not triggered until an alien is released from custody for having committed an offense specified in subparagraphs (A)-(D), as opposed to being triggered by release from any type of criminal custody).
38 The Second Circuit held that, to avoid "serious constitutional concerns," § 1226(c) "must be read as including an implicit temporal limitation," such that aliens taken into immigration custody pursuant to § 1226(c) cannot be held without a bond hearing for more than six months. Lora, 2015 WL 6499951, at *10-11. In so holding, the Second Circuit noted that indefinite detention "has real-life consequences for immigrants and their families," and that it is particularly concerning when "[n]o principled argument has been mounted for the notion that [the detainee] is either a risk of flight or is dangerous." Id. at *12.
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Case: 13-1994 Document: 00116936604 Page: 58 Date Filed: 12/23/2015 Entry ID: 5964508
their immigration custody have had the opportunity to re-establish community ties, are not subject to the bar to release set forth in (c). They are subject instead to the default rule of discretionary release set forth in (a).39
To be sure, Congress was concerned about criminal aliens failing to show up for removal proceedings. See Rojas, 23 I. & N. Dec. at 122. But Congress expressly directed the executive to address that concern by complying with the mandate to pick up aliens within a reasonable time frame. In fact, Congress established transition rules that the Attorney General could invoke to ensure the government would be prepared to comply promptly with § 1226(c) by the time those rules expired. See Adeniji, 22 I. & N. Dec. at 1110.
As a result, we do not believe Congress intended that the executive could fail to pick up an alien within a reasonable time and then, despite that unexplained delay, deny that alien the chance to seek bonded release notwithstanding that alien's years of living freely. See Castañeda, 952 F. Supp. 2d at 318 n.10
39 Our colleagues' gardening example is of little help in establishing the context for discerning Congress's intent in enacting a detention mandate that "touches upon matters of both personal liberty and the control of our nation's borders." See infra at 76. As for our colleagues' suggestion that Congress had "no good reason" to distinguish between aliens timely taken into custody and aliens not timely taken into custody, our prior decision in Saysana supplies a compelling reason, see Saysana, 590 F.3d at 17, as does Congress's treatment of § 1226(a) as a backstop source of detention authority.
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Case: 13-1994 Document: 00116936604 Page: 59 Date Filed: 12/23/2015 Entry ID: 5964508
("[T]he experience of having one's liberty stripped away is
drastically different from the experience of not having it
restored."); cf. DeWitt v. Ventetoulo, 6 F.3d 32, 34-36 (1st Cir.
1993) (holding that revoking a mistakenly granted suspension of
sentence and re-imprisoning a defendant after years of being free
violated due process). And there certainly is nothing in the
legislative history to indicate that Congress did have that
specific intention.40
For these reasons, the principal precedent that the
government, like the Third Circuit in Sylvain, 714 F.3d at 158-
61, relies on, United States v. Montalvo–Murillo, 495 U.S. 711
(1990), is not to the contrary. That case concerned whether the
government's failure to hold a bond hearing in a timely fashion
barred the government from assuming pre-trial custody of a criminal
defendant under the Bail Reform Act (BRA). See Montalvo-Murillo,
40 In fact, the legislative history accords with the notion that Congress wanted to limit § 1226(c) to aliens coming right out of criminal custody in order to help immigration authorities conserve scarce detention bed space so that aliens who needed to be detained under § 1226(a) could be. See Criminal and Illegal Aliens: Hearings Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. (Sept. 5, 1996) (statement of David Martin, General Counsel of INS) (noting that criminal aliens subject to the AEDPA's detention mandate imposed severe burdens on detention bed space and crowded out space for aliens who did not come within such mandate and only discussing efforts by immigration authorities to take aliens into custody just as they were leaving incarceration); Amicus Br. of Frm. Imm. Judges and DHS Sec. Officials at 17-20 (describing scarce detention bed space).
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Case: 13-1994 Document: 00116936604 Page: 60 Date Filed: 12/23/2015 Entry ID: 5964508
495 U.S. at 717. Notably, but not surprisingly, the BRA specified
no consequence for holding a hearing late. And the Court thus
held that such failure should not be deemed to have the drastic
and disproportionate consequence of depriving the government of
its power to place a criminal defendant in custody at all by
mandating the release of the criminal defendant. See id. at 719-
20.41
Here, however, the putative time limit appears within an
express exception to a grant of authority. So § 1226 itself makes
clear what consequence would follow if such time limit is not met.
Moreover, that consequence would not strip the executive of the
power to assume custody of a potentially dangerous or flight-prone
criminal defendant. Instead, the Attorney General would merely
retain her otherwise broad discretion to decide whether to assume
and maintain custody of an alien pursuant to whatever rules she
41 The Supreme Court's decision in Barnhart, 537 U.S. at 152, is similar. The appellants argued that a certain provision of the Coal Act specified the consequence for the government's failure to timely comply with another provision, id. at 153, 163, but the Court rejected this argument because the Coal Act's text did not expressly link the two provisions and there was evidence to suggest that Congress did not think of the two provisions as related. Id. at 163-65. Moreover, the Court reasoned that it was implausible to think that Congress would have wanted that separate provision to control as a policy matter, so the consequence was untenable. Id. at 164. Here, of course, Congress expressly styled § 1226(c) as an exception that restricts the power otherwise granted under (a), so the asserted consequence is clearly linked to the asserted act of noncompliance. And, for the reasons discussed, we hardly think it is counterintuitive for Congress to have intended that (a) would control if (c)'s conditions are not met.
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Case: 13-1994 Document: 00116936604 Page: 61 Date Filed: 12/23/2015 Entry ID: 5964508
may lawfully establish for exercising such discretion under (a). Because this consequence follows from the text and because the text accords with the reasonable and intuitive understanding that Congress intended to distinguish between aliens like petitioners and aliens who were taken into custody "when . . . released," see Saysana, 590 F.3d at 17, we read the timing condition at issue here as circumscribing the Attorney General's duty under (c).
Thus, at least absent an authoritative agency construction of § 1226(c)(2), we conclude that the word "when" does set forth a time constraint on (c) that expires after a reasonable time. And for that reason, we reject the government's contention that "when" must be read merely to trigger an indefinitely persisting duty, such that it imposes no outer bound on the scope of the exception § 1226(c) sets forth.
IV. The current version of the detention mandate requires that aliens who have committed certain offenses be taken into immigration custody in a timely manner following their release from criminal custody. The detention mandate further provides that only such aliens must then be held without bond until the completion of the removal process. These petitioners were released from criminal custody years before they were first placed in immigration custody. For that reason, they clearly do not fall within "this detention mandate." H.R. Conf. Rep. No. 104-828
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Case: 13-1994 Document: 00116936604 Page: 62 Date Filed: 12/23/2015 Entry ID: 5964508 (1996), 1996 WL 563320, at *210-11. Accordingly, we agree with the two district courts that these petitioners have the right to individualized bond hearings at which they can make the case that they do not pose sufficient bond risks, just as the Attorney General specified in the regulations that she issued pursuant to § 1226(a).
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Case: 13-1994 Document: 00116936604 Page: 63 Date Filed: 12/23/2015 Entry ID: 5964508
TORRUELLA, Circuit Judge (Concurring). I recognize that the Supreme Court has determined that Congress may, "[i]n the exercise of its broad power over naturalization and immigration, . . . regularly make[] rules that would be unacceptable if applied to citizens," Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); see also Demore v. Kim, 538 U.S. 510, 521 (2003), and that the right to bail is not absolute. United States v. Salerno, 481 U.S. 739, 754-55 (1987). Yet, I must register my discomfort with respect to 8 U.S.C. § 1226(c).
I am compelled to suggest that the indefinite detention without access to bond or bail of any person in the United States violates due process. See Wong Wing v. United States, 163 U.S. 228, 238 (1896) ("[A]ll persons within the territory of the United States are entitled to the protection guarantied [sic] by th[e Fifth and Sixth] amendments [sic] . . . ."); Yick Wo v. Hopkins, 118 U.S. 356, 369-70 (1886) (applying Fourteenth Amendment due process and equal protection provisions "to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality"). The U.S. Constitution specifically addresses the right to bail. It is the first concern of an amendment that names just three subject matters. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. As the Supreme Court has elsewhere noted, "[b]ail is basic to our
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Case: 13-1994 Document: 00116936604 Page: 64 Date Filed: 12/23/2015 Entry ID: 5964508
system of law." Herzog v. United States, 75 S. Ct. 349, 351 (Douglas, Circuit Justice, 9th Cir. 1955) (citing U.S. Const. amend. VIII; Stack v. Boyle, 342 U.S. 1 (1951)). The Fifth Amendment mandates that no "person . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V.
When the government exercises its discretion to subject a person to detention without access to a bond hearing after the condition justifying detention has been in existence for a considerable period of time, it disregards what is by then selfevident -- that said subject is neither a flight risk nor a danger to society, the primary reasons for denying bail. See 18 U.S.C. § 3142(e)(1); cf. Carlson v. Landon, 342 U.S. 524, 542 (1952) ("There is no denial of the due process of the Fifth Amendment under circumstances where there is reasonable apprehension of hurt from aliens charged with a philosophy of violence against this Government."). Although Judge Kayatta, Chief Judge Howard, and Judge Lynch view this issue differently, infra at 104-05, this Court has elsewhere described their views as counter-intuitive. Saysana v. Gillen, 590 F.3d 7, 17-18 (1st Cir. 2009) ("[I]t is counter-intuitive to say that aliens with potentially longstanding community ties are, as a class, poor bail risks. . . . By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an
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Case: 13-1994 Document: 00116936604 Page: 65 Date Filed: 12/23/2015 Entry ID: 5964508 individual spends in a community, the lower his bail risk is likely to be."). Affirming the government's prerogative to incarcerate persons in defendants' situation without bail or bond hearing is not only to allow arbitrary and abusive government action but to condone acts that run contrary to the Constitution. See Herzog, 75 S. Ct. at 351; see also Wong Wing, 163 U.S. at 237. I write separately to ensure that the constitutional concerns raised by § 1226(c) and the government conduct it commands -- the ongoing, institutionalized infringement of the right to bail and right to due process -- are formally acknowledged. Notwithstanding these concerns, we reach the conclusion we must in light of Congress's laws, legislative history, and the Supreme Court's holdings. I thus concur in the judgment.
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Case: 13-1994 Document: 00116936604 Page: 66 Date Filed: 12/23/2015 Entry ID: 5964508
KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge, and LYNCH, Circuit Judge, join. Congress enacted what is now 8 U.S.C. § 1226(c) because of its concern that immigration judges had proven to be insufficiently accurate predictors of which aliens would "engage in crime and fail to appear for their removal hearings." Demore v. Kim, 538 U.S. 510, 513 (2003); see S. Rep. No. 104-48, at 2 (1995) ("Despite previous efforts in Congress to require detention of criminal aliens while deportation hearings are pending, many who should be detained are released on bond."). To address this concern, Congress identified four categories of what Congress called "criminal aliens." 8 U.S.C. § 1226(c). Section 1226(c), as signed by the President on September 30, 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), mandates, first, that the Attorney General "take into custody" these criminal aliens "when the alien is released" from criminal detention (the "custody mandate"). See id. § 1226(c)(1). Section 1226(c) then mandates, second, an end to the practice of immigration judges trying to predict which of those criminal aliens will appear for removal proceedings if ordered to do so. See id. § 1226(c)(2). Under this latter mandate (the "no-release mandate"), the Attorney General must not release the criminal alien from the Attorney General's custody pending resolution of the alien's removal proceeding, unless release is necessary for protection of certain
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persons in connection with an investigation into a major crime.

See id. The alien is, however, entitled to an immediate hearing

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

subject to section 1226(c)'s mandates.

See 8 C.F.R.

§ 1003.19(h)(2)(ii).

With its evenly divided vote, our court leaves in place

two district court decisions holding that, to the extent the

Attorney General fails to comply promptly with the custody mandate,

immigration judges will find themselves back in the position of

predicting which criminal aliens will present themselves for

removal if they are released on bail pending the conclusion of

their removal proceedings. Indeed, as we understand the reasoning

of our colleagues who would affirm the decisions below, any failure

by the Attorney General to achieve prompt compliance with the

custody mandate renders both the custody and the no-release

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

we would instead join all four other circuits that have considered

this issue by sustaining the Board's current practice in complying

with section 1226(c). See Lora v. Shanahan, No. 14-2343-PR, 2015

WL 6499951, at *8–9 (2d Cir. Oct. 28, 2015); Olmos v. Holder, 780

F.3d 1313, 1327 (10th Cir. 2015); Sylvain v. Attorney General, 714

F.3d 150, 161 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375, 384

(4th Cir. 2012).

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Case: 13-1994 Document: 00116936604 Page: 68 Date Filed: 12/23/2015 Entry ID: 5964508
I. Discussion We begin by explaining our view that the statute's mandates apply to petitioners, using the same tools of statutory construction that our colleagues employ to decide this case at step one of the Chevron analysis. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). We also explain why our colleagues' parsing of section 1226(c), even if correct, fails to support the conclusion that the Attorney General's failure to take a criminal alien into custody immediately upon release somehow eliminates any further requirement to comply with Congress's mandates set forth in section 1226(c). Finally, although our colleagues do not reach Chevron step two, see id. at 843, and therefore do not consider the constitutional avoidance argument that was relied upon in the vacated panel opinion, we do reach step two, and therefore briefly explain why that avoidance argument is not a valid basis for setting aside the Board of Immigration Appeals' ("BIA") reasonable interpretation of section 1226(c).
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Case: 13-1994 Document: 00116936604 Page: 69 Date Filed: 12/23/2015 Entry ID: 5964508

A. The Language and Structure of the Statute

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

discretion whether to take into custody aliens charged with removal

and whether to continue that custody pending the completion of

removal proceedings:

(a) Arrest, detention, and release On a warrant issued by the Attorney
General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General--
(1) may continue to detain the arrested alien; and (2) may release the alien on--
(A) bond of at least $1,500 . . . ; or (B) conditional parole . . . .

For certain aliens classified by Congress as "criminal

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

both to take the alien into custody and to maintain that custody

without release subject to a narrow exception. Section 1226(c)

states in full:

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into

custody any alien who--

(A) is inadmissible by reason of

having committed any offense

covered in section 1182(a)(2)

of this title,

(B) is deportable by reason of

having committed any offense

covered

in

section

1227(a)(2)(A)(ii), (A)(iii),

(B), (C), or (D) of this title,

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(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. (2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
Each of the petitioners in this case, after arriving in
this country, was convicted of one of the criminal acts listed in
section 1226(c)(1)(A)-(D). See Castañeda v. Souza, 769 F.3d 32,
36 (1st Cir. 2014), reh'g granted en banc. There is no dispute
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among the parties that section 1226(c) therefore plainly required the Attorney General: (1) to take petitioners into custody when they were released from incarceration, and (2) to detain them until the conclusion of their respective removal proceedings. The question under consideration is what happens when, as here, the Attorney General does not manage to detain the criminal alien until after the alien's release from incarceration.
All members of our en banc panel appear to agree that the mandate of paragraph (2) of section 1226(c) strictly limiting the release of certain persons once detained applies to anyone who is "an alien described in paragraph (1)." So this case pivots, at least in the first instance, on determining the meaning of that phrase. The BIA, in a quite straightforward fashion, construed that phrase to mean any alien who satisfies one of the adjectival descriptions set forth in subparagraphs (A)-(D) of paragraph (1) ("any alien who" "is inadmissible" or "is deportable" under the specified laws). In re Rojas, 23 I. & N. Dec. 117, 121 (BIA 2001). Petitioners, and now three of our colleagues, argue instead--and this is crucial to their entire argument--that the pertinent description of the aliens in paragraph (1) clearly includes as well the adverbial phrase "when the alien is released" (emphasis added). In this manner, our colleagues reason that if an alien was not detained by the Attorney General immediately "when the
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Case: 13-1994 Document: 00116936604 Page: 72 Date Filed: 12/23/2015 Entry ID: 5964508
alien [was] released," then that alien is not an alien "described" in paragraph (1).
This attempt at deputizing an adverbial phrase into service as a description of the noun "alien" pays little heed to customary conventions of grammar and syntax. "An adverb, an adverbial phrase, or an adverbial clause may qualify several parts of speech, but a noun is not one of them." Theodore M. Bernstein, The Careful Writer, A Modern Guide to English Usage 23 (1965). Conversely, adjectives (like those in subparagraphs (A)-(D)) are "good friends of the noun." H.W. Fowler, A Dictionary of Modern English Usage 10 (Sir Ernest Gowers ed., 2d ed. 1965); see also Merriam-Webster's Collegiate Dictionary 19 (11th ed. 2012). We do not mean to say that there are never circumstances in which writers might employ an adverbial phrase in the manner employed by our colleagues. Poetic license, after all, knows few bounds. Rather, we say merely that if a straightforward reading of the text employing basic, conventional usages of grammar points directly at a given interpretation, it should take some pretty heavy lifting to reject that interpretation, much less to reject it as not even within the zone of reasonableness.
Nor is grammar the only enemy of petitioners' preferred reading of the text. Structure argues against petitioners as well. After stating what the Attorney General must do to "any alien who--," paragraph (1) sets down in four separately indented and
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lettered subsections the four clauses that plainly describe an alien, relegating the adverbial "when" phrase back to unlettered and unindented text. We thus not only have four adjectival clauses that obviously describe the noun "alien" and one adverbial phrase that less readily does so, but we also have a format that literally and visually sets the four descriptions apart from the adverbial phrase. This structure directly reinforces the reading of the "when" phrase as qualifying the verb "take" in the clause "[t]he Attorney General shall take into custody" rather than as describing "any alien[s]."
In so observing, we do not mean to overstate the case. Our colleagues make a fair point that the statute might have been more clear had paragraph (2) referred only to subparagraphs (A)-(D). Of course, the fact that language might have been more clear--as it always could be--does not mean that it is not clear enough. See Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670, 1682 (2012) ("[T]he mere possibility of clearer phrasing cannot defeat the most natural reading of a statute . . . ."); cf. In re Fahey, 779 F.3d 1, 6 (1st Cir. 2015) (explaining that a statute's meaning was clear even though the statutory language could not "be read as entirely excluding the possibility" that a competing--but ultimately unpersuasive--interpretation was correct). Relatedly, we note that Congress has on occasion, within the Immigration and Nationality Act ("INA"), referenced a general
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subparagraph while clearly intending to refer only to the inset subclauses within that subparagraph. See, e.g., 8 U.S.C. § 1153(b)(5)(B)(i) (referencing 8 U.S.C. § 1153(b)(5)(A) but clearly intending to cross-reference only the inset clauses (i)(iii) within (A)).
We also find it significant that the language and structure of section 1226(c) as a whole reveals that Congress actually did specify which criminal aliens described in paragraph (1) may be released notwithstanding those aliens' prior commission of (A)-(D) crimes. It described those aliens in paragraph (2). And that description (of persons connected to government witnesses or investigations) plainly does not include petitioners. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616–617 (1980))).
We have good company in concluding that it is reasonable to read section 1226(c) in this manner. In describing the statute in the first sentence of Demore, the Supreme Court stated that section 1226(c) "provides that '[t]he Attorney General shall take into custody any alien who' is removable from this country because he has been convicted of one of a specified set of crimes." Demore,
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Case: 13-1994 Document: 00116936604 Page: 75 Date Filed: 12/23/2015 Entry ID: 5964508
538 U.S. at 513. As petitioners would have it, the Court should have added "and has just been released" as part of its description of the alien to whom the mandates were intended to apply. But it did not, presumably because it was focused on its recognition that Congress's goal was to end the practice of "releasing deportable criminal aliens on bond" in order to avoid what Congress decided was "an unacceptable rate of flight." Id. at 520. Of course, the Court's description of the statute was not a holding. It certainly shows, though, that a pretty good reader of statutes easily reads the language as we do. Cf. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 377 (2006) (looking to how the court previously tended to use the term "discharge" in dicta under the Clean Water Act).
In gauging the import of the foregoing textual analysis, we must also express a reservation concerning our colleagues' interpretative methodology. At several steps in their analysis, they confront an interpretative guide that cuts against them (e.g., adverbs usually do not describe nouns, the layout of the subheadings supports a grammatical reading, the Supreme Court's short-hand summary of the statute is informative). In each case, our colleagues correctly note that the guide is not always dispositive. So far, so good. They then, however, proceed forward as if the import of those guides carries no continuing weight in the analysis and so does not undermine a conclusion that the
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statute is actually plainly to the contrary. We view that import,

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

evidence that speaks directly and unambiguously to the contrary.

Silence, assumptions, inferences, and ambitiously constructed

lines of reasoning that were likely never within the contemplation

of any drafter serve poorly as substitutes for such evidence. See

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

Cir. 1994) ("[L]egislative history that is in itself inconclusive

will rarely, if ever, overcome the words of a statute.").

This is not to say that we end our own inquiry at this

point. To the contrary, we accept the notion that most statutes

must be read with a sense of what Congress was trying to do, and

that such a sense may be derived from knowledge gained outside the

four corners of the text, keeping in mind the weighty role that

the text must continue to play. We also agree with our

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

so plain as to foreclose all extra-textual inquiry. So, for that

reason, and particularly because the actual language at issue

touches upon matters of both personal liberty and the control of

our nation's borders, we think it reasonable to look next at the

legislative history to determine whether one can say that the

straightforward, grammatically conventional reading of the statute

comports with a reasonable interpretation of what Congress was

trying to accomplish.

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B. Legislative History
Our review of the legislative history begins with the
most directly pertinent legislative history: the conference report
to the IIRIRA. Regarding section 1226(c) (i.e., section 236(c) of
the law), the report states in full:
New section 236(c) provides that the Attorney General must detain an alien who is inadmissible under section 212(a)(2) or deportable under new section 237(a)(2). This requirement does not apply to an alien deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has not been sentenced to at least 1 year in prison. This detention mandate applies whenever such an alien is released from imprisonment, regardless of the circumstances of the release. This subsection also provides that such an alien may be released from the Attorney General's custody only if the Attorney General decides in accordance with 18 U.S.C. 3521 that release is necessary to provide protection to a witness, potential witness, a person cooperating with an investigation into major criminal activity, or a family member or close associate of such a witness or cooperator, and such release will not pose a danger to the safety of other persons or of property, and the alien is likely to appear for any scheduled proceeding.
H.R. Rep. No. 104-828, 1996 WL 563320, at *210-11 (1996) (Conf.
Rep.).
It is beyond dispute that the phrase "such an alien" as
used in the third sentence of the conference report refers back to
the aliens who are described in the first two sentences, neither
of which contains (as either adjective or adverb) any requirement
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that the person be recently released. The third sentence simply tells us when the new custody mandate applies to "such an alien." It is also entirely fair to presume that the same phrase "such an alien" means the same thing in the fourth sentence's description of what the statute "also" provides for: the no-release mandate. This is, of course, simply another way of saying that the alien "described" in section 1226(c)(2)'s no-release mandate is an alien described in 1226(c)(1)(A)-(D)--the same class of alien who is subject to the custody mandate whenever released. And since petitioners were admittedly subject to the custody mandate (i.e., each is "such an alien") they are therefore subject to what section 1226(c)(2) also provides for such an alien: the no-release mandate.
We recognize that our colleagues manage to read even this directly authoritative legislative history as indicating that Congress intended to leave the no-release mandate contingent on how quickly the Attorney General complied with the detention mandate. While we have much difficulty seeing this, we need only for present purposes protest that such a reading is hardly compelling. It is our colleagues, not us, who must claim a monopoly on reasonableness.
We move next to the 1995 Senate Report that directly sets forth the substance of congressional concerns resulting in the enactment of the IIRIRA. S. Rep. No. 104-48 (1995). Treating the report as if it were Oz's man behind the green curtain, our
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colleagues urge the reader to pay no attention to it. But the

Supreme Court itself in Demore directly turned to this report for

precisely the same purpose that guides us to look at the report:

understanding the aims of Congress in enacting section 1226(c).

See Demore, 538 U.S. at 518–21 & n.4. The Court--like us--has

read this legislative history as plainly evidencing "Congress'

concern that, even with individualized screening, releasing

deportable criminal aliens on bond would lead to an unacceptable

rate of flight." Id. at 520. For example, the Senate Report

emphasized that "[u]ndetained criminal aliens with deportation

orders often abscond upon receiving [a notice of removal]. . . .

(This notice is humorously referred [to] by some INS personnel as

the 72 hours 'run notice.')" S. Rep. No. 104-48, at 2-3; see

Demore, 538 U.S. at 518-19 & n.4, 521. The data before Congress

likewise supported its concern that immigration judges fared

poorly in trying to predict which aliens would take flight once

INS took steps to remove them. S. Rep. No. 104-48, at 2 ("Over 20

percent of nondetained criminal aliens fail to appear for

deportation proceedings.").

And the Senate Report's

recommendation that "Congress should consider requiring that all

aggravated felons be detained pending deportation" due to "the

high rate of no-shows for those criminal aliens released on bond,"

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S. Rep. No. 104-48, at 32 (emphasis added), directly addressed-and is certainly entirely consistent with--this concern.
Nor did Congress give any reason to think that this concern disappeared merely because the criminal alien was not detained for a period of time before deportation proceedings began. To the contrary, the "deportable criminal aliens [who] failed to appear for their removal hearings," Demore, 538 U.S. at 519, were all those aliens who were not being held in INS custody. In this respect, it is helpful to keep in mind the actual interpretation of the statute that petitioners urge. They repeatedly argue that Congress would not have been concerned about allowing immigration judges to predict flight risk for criminal aliens who have "long since returned to their communities." But their reading of the statute would mean that all criminal aliens who avoid detention "when . . . released" would be entitled to a shot at convincing an immigration judge that the alien would voluntarily surrender if removal is ordered. And this would be so whether the alien has been free from prior criminal custody for a week or for five years, and no matter what the alien has done post-release.
Of course, one could argue that the immigration judges will not release obvious flight risks. But that is presumably what immigration judges were trying to do before Congress concluded that it had insufficient confidence in the immigration judges' ability to make ad hoc predictions, and opted for the categorical
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treatment of four groups of aliens who are most likely to be removed. To now say that the executive, merely by failing to detain a criminal alien promptly, can revive the immigration judges' ability to pick and choose who gets released on bail would be a result directly at odds with what Congress plainly sought to achieve. Cf. King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (rejecting an interpretation of the Affordable Care Act that would lead to the "result that Congress plainly meant to avoid").
Nor does it help petitioners to argue that Congress's concern about recidivism is somehow inapplicable categorically for those criminal aliens who have "lived in the community" for some undefined period of time post-release. In the first place, there is no compelling evidence in the record that Congress meant section 1226(c) to apply only when both reasons for its enactment --avoiding flight and re-offense--would be served. Second, just as Congress found unacceptable the mere possibility of recidivism among this category of criminal aliens during the period between release from criminal custody and removal adjudication, there is no basis in the record for presuming that Congress felt that immigration judges would be in a position to discount that possibility merely by noting that the criminal alien had been released some time ago. The immigration judges will both lack much knowledge about what the criminal alien has been doing since release and have no ability to predict future behavior that is
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materially greater than the ability found by Congress to be insufficient.
The legislative record, like Conan Doyle's dog that did not bark, also conveys much by what it does not say. See Chisom v. Roemer, 501 U.S. 380, 396 & n.23 (1991). Imagine, for example, that petitioners were correct: if a criminal alien were not detained immediately upon release from prison, that alien would have a right to convince an immigration judge that the alien is not a flight risk. And, as our colleagues read the statute, this right would belong to every alien not detained upon release, whether or not the alien settled in any community, or took efforts to hide, or even went on a crime spree. If that had been Congress's aim, it is unlikely that there would be no acknowledgement of such a loophole, nor any language in the statute defining and limiting the loophole.
Similarly, if the entire mandatory detention regime hinged on whether the criminal alien was detained "when . . . released," one would have expected Congress to pay some attention to defining that term. How much time is too much? What if the alien hides? What if the alien commits a new crime? What if the state prison does not cooperate, making it impossible for federal agents to know when the alien will leave state custody? There is no evidence that Congress viewed its legislation as raising such questions, all of which would have been nose-on-the-face obvious
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had Congress intended the statute to be read as petitioners would have us read it. Precisely to the contrary, the entire focus was broadly and categorically on "[u]ndetained criminal aliens." See S. Rep. No. 104-48, at 2.
Particularly noteworthy in this regard is the fact that the drafters were well aware of--and concerned about--the fact that criminal aliens were avoiding detention because some state and local authorities refused to let INS know when criminal aliens were being released. See S. Rep. No. 104-48, at 16-17, 22. Yet, if petitioners are correct, Congress gave the state and local authorities hostile to Congress's aim complete ability to frustrate pursuit of that aim.
Our knowledge of how Congress chooses to affect the removal process of criminal aliens in other provisions of the U.S. Code dovetails with our understanding of Congress's purpose in enacting section 1226(c). For example, Congress, in the IIRIRA, barred from eligibility for cancellation of removal any permanent resident alien convicted of an aggravated felony.42 See Pub. L. No. 104-208, 110 Stat. 3009-594 (creating 8 U.S.C. § 1229b(a)(3)); Rojas, 23 I. & N. Dec. at 121-22. Congress also stripped courts of jurisdiction "to review any final order of removal against an
42 An alien who is "deportable by reason of having committed" an aggravated felony falls under section 1226(c)(1)(B). Compare 8 U.S.C. § 1226(c)(1)(B), with id. § 1227(a)(2)(A)(iii).
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alien who is removable by reason of having committed" certain
criminal offenses that are also listed as predicate offenses under
section 1226(c)(1)(A)-(C). See 8 U.S.C. § 1252(a)(2)(C); Rojas,
23 I & N Dec. at 122.43 The aliens described in (A)-(D) are
therefore more likely to lose--and more likely to expect to lose
--in a removal proceeding, thus increasing the incentive to flee
once they are on Immigration and Customs Enforcement's ("ICE")
radar. It therefore seems natural to conclude that Congress wanted
these aliens to be in custody when the removal proceeding
concluded, whether or not they were taken into custody right when
previously released.
Congress's focus in related legislation on making it
more difficult for criminal aliens to successfully contest a
removal order also reinforces the view that Congress aimed to deal
with such aliens categorically. In saddling criminal aliens with
many burdens not imposed on aliens who reside in the United States
43 The INA contains numerous other examples of ways in which Congress has made it more difficult for criminal aliens to avoid removal. For instance, in removal proceedings, lawful permanent residents convicted of crimes involving moral turpitude may not qualify for a discretionary waiver of removability, because commission of a crime of moral turpitude tolls the accrual of the seven years of residence required for cancellation of removal. See 8 U.S.C. § 1229b(d)(1). Other aliens convicted of a crime involving moral turpitude may not qualify for cancellation and adjustment to lawful permanent resident status. See id. § 1229b(b)(1)(C). Additionally, aggravated felons may not seek asylum, see id. § 1158(b)(2)(A)(ii), (b)(2)(B)(i), nor may they seek persecution-based withholding of removal if they have been sentenced to five years or more in prison, see id. § 1231(b)(3)(B).
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without committing crimes viewed by Congress as especially relevant to immigration status, see supra note 43, Congress has drawn no distinction based on when the alien is detained. Evidence of living in the community for years post-release does not eliminate the legal disabilities in removal proceedings imposed by the prior commission of certain criminal acts. On the contrary, during the years preceding the IIRIRA and within the IIRIRA itself, Congress actively sought to narrow the group of criminal aliens eligible for relief based on duration of residency. For example, prior to the IIRIRA, many aliens with "a lawful unrelinquished domicile of seven consecutive years" could seek relief from removal despite their prior criminal activity. See INS v. St. Cyr, 533 U.S. 289, 295 (2001) (quoting section 212(c) of the INA, formerly codified as 8 U.S.C. § 1182(c)). This sort of relief had "great practical importance," id., and "the class of aliens whose continued residence in this country . . . depended on their eligibility for § 212(c) relief [was] extremely large, and not surprisingly, a substantial percentage of their applications" were granted, id. at 295-96. After amendments to the INA in 1990 and 1996 narrowed the availability of section 212(c) relief, the IIRIRA eliminated it and replaced it with an even narrower class of lawfully admitted permanent resident aliens who had been lawfully present for at least five years and had not been convicted of an aggravated felony. See id. at 297; 8 U.S.C. § 1229b(a).
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We have also considered the language governing section 1226(c)'s effective date, IIRIRA, § 303(b)(2), 110 Stat. 3009, 3009-586, and the IIRIRA's Transition Period Custody Rules ("TPCR"), IIRIRA, § 303(b)(3), 110 Stat. at 3009-586 to -587.44 We agree with our colleagues that such language, as part of the very statute at issue, provides a source of potential insight into the meaning of its companion terms. See Gutierrez v. Ada, 528 U.S. 250, 255 (2000). That insight runs in favor of the interpretation we adopt.
Most notably, the effective date provision states that section 1226(c) "shall apply to individuals released after" the expiration of the TPCR. IIRIRA, § 303(b)(2), 110 Stat. at 3009586. That clause would be superfluous if petitioners were correct that the detention-without-release mandate applies only to aliens who are picked up right away, because immediate detention would be impossible for aliens who had already been released prior to the TPCR's expiration date. See Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669 (2007) ("[W]e have cautioned against reading a text in a way that makes part of it redundant."). While we acknowledge the Supreme Court's recent reiteration that its
44 The TPCR imposed a more permissive regime that, due to Congress's concerns about bed space shortages, governed bond determinations for two years after the IIRIRA's effective date and prior to section 1226(c)'s full implementation. See IIRIRA, § 303(b)(3), 110 Stat. at 3009-586 to -587.
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"preference for avoiding surplusage constructions is not absolute," King, 135 S. Ct. at 2492 (internal quotation mark omitted), the canon provides at the very least yet another thumb to be added to grammar, structure, and legislative purpose on the scale in favor of our interpretation.45
That thumb is particularly large in this case, where (unlike in King), Chevron applies. See King, 135 S. Ct. at 2488– 89 (declining to apply the Chevron two-step framework because if "Congress wished to assign [interpretation] to an agency, it surely would have done so expressly"). Here, we are first asked whether Congress has spoken clearly and directly to the question at issue, and second whether the BIA's interpretation is a reasonable one. The surplusage caused by petitioners' interpretation at once makes the interpretative path they walk less direct and the BIA's reading in Rojas more reasonable. Cf. Nat'l Credit Union Admin. v. First Nat'l Bank & Tr. Co., 522 U.S. 479, 501 (1998) (rejecting, under Chevron step one, agency's interpretation in part because it made "the phrase 'common bond' surplusage").
45 We agree with the actual holding in Saysana v. Gillen, 590 F.3d 7, 18 (1st Cir. 2009), that section 1226(c) does not apply to aliens released from custody for their (A) through (D) offenses prior to the IIRIRA's effective date. To the extent that one might glean from Saysana any inferences concerning the issue presented here for the first time, such inferences would not be binding on our en banc court. See United States v. Gonzalez-Arimont, 268 F.3d 8, 13 (1st Cir. 2001).
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Even putting to one side the surplusage ramification, the TPCR provides no support for petitioners' position because it simply raises the same interpretative question that section 1226(c) poses: do the custody and no-release mandates during the transition period apply if there is a delay in detaining the alien? Our colleagues nevertheless attempt to glean from the TPCR two points of support that warrant our consideration.
First, they point out that the transition rules set forth in the TPCR contain language stating that, should the Attorney General as anticipated invoke the transition rules, § 1226(c) will apply only to persons released after expiration of the transition period. The rules contain no similar provision stating that the mandates in the transition rules themselves apply only to aliens released after the transition rules become effective. This means, our colleagues reason, that under our interpretation the breadth of the mandate's duty imposed on the Attorney General under the permanent rules of section 1226(c) would be "less sweeping than the supposedly more flexible TPCR mandate's bar had been" even though the TPCR was intended to accommodate the Attorney General's need to ramp up resources. The way to fix this "anomalous" result, our colleagues argue, is to read the TPCR's bar on releasing aliens to apply only to those taken into custody "when . . . released." And if one reads the TPCR that way, by analogy one should read section 1226(c) that way. Anomaly cured.
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In this manner, our colleagues imagine a problem that does not exist in order to advocate a solution that is not required. There is no need to interpret the TPCR in this manner to make its duties "less sweeping" than those imposed by section 1226(c). The TPCR, unlike section 1226(c), expressly allows the Attorney General to release any detained aliens who fall into two of the four groups of aliens described in both the TPCR and section 1226(c). Our colleagues offer no evidence at all establishing that the effect of this categorical exclusion does not swamp whatever burden might arise as a result of the theoretical possibility that the Attorney General within the brief two-year transition period might pick up criminal aliens who had not been released from criminal custody during that period.
More fundamentally, our colleagues' premise that language in the TPCR need be rendered superfluous in order to cure a perceived "anomaly" between the TPCR and section 1226(c) incorrectly presumes that it was possible to start up a new regime, with differing transition rules, and not have some "anomalies." For example, what was to be done with an alien who was released from prison during the transition period, and who then moved for bail after the expiration of the transition period? Under the language of the transition rules--and under either interpretation of section 1226(c) proffered in this case--such a person would suddenly have a shot at bonded release that he might not have had
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if he had moved for bail before the transition period had expired (i.e., the section 1226(c) detention mandates would be "less sweeping"). See In re Adeniji, 22 I. & N. Dec. 1102, 1110-11 (BIA 1999). Certainly such an anomaly provides no license to re-write section 1226(c). It does, however, make clear that some such anomalies arise inevitably from the need to have some arbitrary cut-offs for implementing new programs.
Second, our colleagues complain that, in some instances, the BIA's reading of section 1226(c) would have "de-linked" or "misaligned" the custody and no-release aspects of section 1226 if the TPCR transition rules had not been invoked because the clause in the TPCR limiting section 1226(c) as a whole to persons released after the TPCR became effective would not have been triggered. As an example, our colleagues point to a suspected terrorist described in subsection 1226(c)(1)(D) who has never been imprisoned and who is roaming the streets. Under the BIA's interpretation, the Attorney General would reserve the ability to decide whether to arrest such a person because the custody mandate would not have been triggered by a prior release. Once the Attorney General decided the suspected terrorist should be detained, under the BIA's reading of section 1226(c)(2), as it would apply had the transition period not been implemented, no immigration judge would have the discretion to release the alien unless the alien prevailed in the removal proceeding. Our colleagues apparently think this is an
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obviously unsound result, and that Congress must have intended
that immigration judges could second guess the Attorney General
and order such an alien released. How one reads Congress's
manifest unhappiness with the predictive failure of immigration
judges as supporting such a conclusion puzzles us.46
Our colleagues also lean hard on the meaning they derive
from section 1226(c)'s predecessors. We agree with the BIA's
position in Rojas that, while none of the other predecessor
provisions shed helpful light on the issue to be decided in this
case, the post-1991, pre-AEDPA version of the custody and no-
release mandates is instructive. Rojas, 23 I & N. Dec. at 123-
24. That version, embodied in section 242(a)(2) of the INA
following the 1990 and 1991 amendments,47 provided that:
46 Our colleagues point out that there is no legislative history suggesting that Congress was more hostile to the discretion of immigration judges in determining whether to grant bonded release to a criminal alien than to the discretion of immigration enforcement in determining whether to bring a criminal alien into immigration custody in the first place. But this is immaterial. Given that we apply Chevron deference, it is incumbent on our colleagues to demonstrate that it clearly lay outside of Congress's intent to adopt a statutory scheme that would not require immigration enforcement to track down and detain each and every criminal alien, including the low-level narcotics offender, but that would allow immigration enforcement to rest assured that efforts to detain those criminal aliens who do represent enforcement priorities would not go for naught due to the miscalculation of an immigration judge at the alien's bond hearing.
47 Immigration Act of 1990, § 504, Pub. L. No. 101-649, 104 Stat. 4978, 5049; Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), Pub. L. No. 102232, 105 Stat. 1733, 1751 (effective as if included in the 1990 Act).
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(A) The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense). Notwithstanding [the equivalent of section 1226(a)] . . . but subject to subparagraph (B), the Attorney General shall not release such felon from custody.
(B) The Attorney General may not release from custody any lawfully admitted alien who has been convicted of an aggravated felony, either before or after a determination of deportability, unless the alien demonstrates to the satisfaction of the Attorney General that such alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.
INA § 242(a)(2) (1991) (emphasis added).
Under subparagraph (B) (the equivalent of
section 1226(c)(2)), whether the alien is subject to that statute's
mandate limiting release prior to his hearing turns entirely on
whether the alien was convicted of an aggravated felony, "unless"
the alien is able to demonstrate that he is not a bond risk. There
is nothing in that version of the statute that even remotely
suggests that a lapse in establishing custody removes an alien
from the scope of subparagraph (B)'s coverage. And notably absent
from subparagraph (B) is any mention of subparagraph (A) or its
"upon release" language (i.e., the "when . . . released" clause's
equivalent). This is a problem for our colleagues and petitioners
because, once again, that textual reference point is the only hook - 92 -

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they latch on to in concluding that the description of aliens subject to the no-release mandate includes a timing element. Simply put, the language of the most long-standing version of the no-release mandate prior to the IIRIRA does not appear to contain any of the ambiguity that section 1226(c) arguably possesses with respect to the relevance of the timing of release. None of the language in the predecessor provisions to which our colleagues point contains this level of clarity on this key point. And if our colleagues' position that Congress has never sought to alter the relationship between the custody and no-release mandates is correct, this would seem to doom their argument.
Our colleagues point, instead, only to an off-point BIA opinion, Matter of Eden, 20 I. & N. Dec. 209 (BIA 1990), as reflecting the pre-IIRIRA law that Congress sought to preserve. But the question of whether a delay in detaining a criminal alien eliminated the Attorney General's obligation to deny bond once the alien was detained was not even raised as an issue in Eden. Rather, the case involved an alien who had been taken into immigration custody while on "special parole" as part of his criminal sentence. The question posed was whether subjecting such a person to mandatory immigration custody without bond was inconsistent with "Congress' decision to allow [an] alien serving time in [a] state or local facility to finish out that time before the Service assumes responsibility for his incarceration." Id. at 214.
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It is true that, under Rojas's reasoning, the BIA perhaps could have reached the same result in Eden merely by saying that once a criminal alien was detained, he could not be granted bond regardless of whether he had yet been released from prior custody. Even under that approach, though, the BIA would have had an interest in clarifying the scope of the Attorney General's statutorily mandated duty to detain a criminal alien--and, namely, in clarifying whether conceiving of a duty on the Attorney General to detain a person too soon (i.e., during the course of a prior sentence) ran up against the congressional intent expressed through the 1988 legislation's "upon release" provision. In any event, the simpler point is that there is no holding in Eden, either express or implied, that addresses the issue posed here.48
Compounding their attempt to glean a holding--much less settled law--from Eden, our colleagues then simply misread the House report to the 1990 legislation that revised the clause "upon completion of the alien's criminal sentence" to read "upon release of the alien (regardless of whether or not release is on parole, supervised release, or probation . . . .)." Rightly or wrongly, the report plainly states that Congress was concerned that "[a]t least one immigration judge has ruled that an aggravated felon who has been paroled by the sentencing court continues to serve his
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'sentence' [and therefore] INS has no authority to incarcerate this alien until his period of parole has ended." H.R. Rep. No. 101-681, pt. 1, at 148 (1990), as reprinted in 1990 U.S.C.C.A.N. 6472, 6554 (emphasis added). In short, Congress was fearful that its mandate to take criminal aliens into custody without bond upon completion of the sentence was being construed as divesting INS of any authority to detain an alien while the alien was on parole. Restoring that authority implied a "link" to the no-release mandate only in the obvious sense that any elimination of INS's authority even to take a person into custody obviously frustrates any mandate that the person be kept in custody. Nothing in this sort of logical link in any way implies (much less compels) a conclusion that the custody and the no-release mandates are "linked" in the sense that our colleagues' analysis requires. To the contrary, the fact that Congress wanted even those criminal aliens who would otherwise be subject to parole reporting and supervision to be detained during their removal proceedings would seem to cut against our colleagues' assumption that a brief period of unsupervised living in the community eliminated the need for detention.
This type of error (presuming that any reference to "immediate" detention without bond implies that a delay in detention makes a bond possible) pervades our colleagues' entire discussion of the legislative record. When we see Congress repeatedly emphasizing that the government must take criminal
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aliens into custody "when," "upon," or "immediately upon" their release, and then not release them, we see no implied loophole. Rather, we see an increasingly urgent expectation that criminal aliens should be found in custody when the removal decision issues.
We stress, too, that even if one were to ignore these defects in our colleagues' survey of the legislative history, the most one ends up with are efforts to infer an answer to the question at hand from statements made in addressing other issues where the resolution of those other issues did not require or even call upon a degree of precision that would be necessary to confirm the force of the inference. And in each instance, the actual resolution of the issue at hand is completely compatible with the BIA's conclusion in Rojas. Inferences of this type, whether reasonable or not, seem to us to fall far short of the "clear" legislative record one should require to end the inquiry at Chevron step one.
Turning their focus from the 1991 amendment and its predecessors, our colleagues repeat their error in claiming that we should presume that, in enacting the IIRIRA, Congress was aware of the fact that "district courts . . . treated the retained 'upon release' clause [of AEDPA] as if it conditioned the retained 'such felon clause.'" Supra at 38-39. Our colleagues cite five district court cases as constituting this "existing law" of which Congress was supposedly aware. Three are actually holdings that address retroactivity under AEDPA. Montero v. Cobb, 937 F. Supp. 88 (D.
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Mass. 1996); Villagomez v. Smith, No. C96-1141C, 1996 WL 622451 (W.D. Wa. July 31, 1996) (unpublished); DeMelo v. Cobb, 936 F. Supp. 30 (D. Mass. 1996), vacated, 108 F.3d 328 (1st Cir. 1997) (per curiam). As for the fourth, we sincerely doubt that Congress managed to dredge up an obscure unpublished opinion from the Southern District of Texas, which to this day remains difficult to locate. See In re Reyes, Case No. B-94-80 (S.D. Tex. May 31, 1996). The fifth, Grodzki v. Reno, 950 F. Supp. 339 (N.D. Ga. 1996), is arguably on point, but was not issued until September 20, 1996, just ten days before the already drafted IIRIRA was passed into law. See Pub. L. No. 104-208, 110 Stat. 3009. In any event, even were all five cases squarely apposite, five district court opinions could not establish the type of "settled judicial construction" as to which we presume congressional awareness. See United States v. Powell, 379 U.S. 48, 55 n.13 (1964) (four lower court opinions, including two by circuit courts, insufficient).
In sum, against a legislative backdrop thick with indications that Congress aimed to ensure that criminal aliens not go free prior to the conclusion of their removal proceedings, our colleagues stake their reading of the statute on one off-point BIA ruling, one district court decision issued ten days prior to the IIRIRA's enactment, and the supposedly anomalous results derived from reading section 1226(c) in conjunction with what our colleagues themselves describe as "an ancillary and potentially
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never operative clause in the TPCR," supra at 30-31 n.23. In view of the foregoing, one might argue that section 1226(c)'s legislative history actually compels a finding that the straightforward, grammatically conventional reading of the statute must be correct. Instead, tempering our confidence in our own interpretative analysis, we need opine at this point only that the legislative history is not so clearly to the contrary as to compel a finding that "Congress has directly spoken to the precise question at issue" (much less that it spoke with the intent our colleagues claim is clearly apparent). Chevron, 467 U.S. at 842. C. Our Colleagues' Conclusion Falls Short of the Mark
We have explained our disagreement with our colleagues' argument that no reasonable jurist can read the phrase "as described in paragraph 1" as not incorporating into paragraph 2 the phrase "when released . . . ." Even if we are wrong, though, we agree with the Second, Third, Fourth, and Tenth Circuits that the Attorney General's delay in detaining petitioners does not render the no-release mandate inapplicable. Our sister circuits have explained why this is so under the loss-of-authority rubric. See Lora, 2015 WL 6499951, at *8; Olmos, 780 F.3d at 1324–26; Sylvain, 714 F.3d at 157–61; Hosh, 680 F.3d at 381–83. We prefer to reframe the point as a matter of interpreting the text consistently with the purpose manifest in the text. The key point here is that even if the no-release mandate of paragraph (c)(2)
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applied by its terms only to persons who have been released from criminal custody, there is no good reason to say also that it applies only when the Attorney General complies with the custody mandate by detaining the criminal aliens right when they are released.
Consider the following example that we have crafted so that its substance and evident purpose invite the type of reading that our colleagues insist is applicable to section 1226(c).
(1) Please give an especially thorough watering to any plant that is: (A) a sunflower, or (B) a hibiscus when it is planted for the garden show.
(2) Do not let a plant described in paragraph (1) go any day without water unless you are certain that it is dead.
Under the scenario posed by this example, we would agree that it is reasonable to read the reference to plants "described in paragraph (1)" as indicating not all sunflower or hibiscus plants, but rather as indicating sunflower or hibiscus plants that are newly planted for the garden show. This is because our knowledge that certain new plantings need prompt and regular watering gives us a clue for resolving any ambiguity created by the structure and awkward syntax of the mandates.
Nevertheless, even in this example designed to welcome the type of reading that our colleagues give to section 1226(c), it simply does not follow that the mandate of section (2) is also
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contingent upon prompt compliance with the mandate of section (1). No reasonable person would let the plants in question continue to go without water merely because impediment or neglect unduly postponed the first watering.
Of course, this conclusion, too, follows in great part from an assumption that the principal purpose of the mandates is to keep the new plants alive. In the case of section 1226(c), an analogous (and actual) purpose is manifest in the legislative history discussed in this opinion and in Demore. In repeatedly and even more broadly expressing dissatisfaction with criminal aliens not being in custody when removal is ordered, Congress did not order the Attorney General to detain such aliens only if she chose to do so right away. Rather, we read section 1226(c) as ordering the Attorney General to detain such persons, and to do it right away. The question whether the Attorney General complied with that mandate right away--like the question whether the plants were watered promptly when planted--is simply an exogenous and independent fact that is not part of the description of those to whom either mandate applies.49
49 Our colleagues suggest that our distinction between exogenous and endogenous characteristics cuts too fine. We will simplify. Section 1226(c)(1), under any reading, both creates a duty and describes a group of people as to whom that duty must be carried out. We see how section 1226(c)(2)'s reference to a person "described in" section 1226(c)(1) could reasonably be understood to refer to a member of the delineated group as to whom the duty
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Case: 13-1994 Document: 00116936604 Page: 101 Date Filed: 12/23/2015 Entry ID: 5964508
D. The Constitutional Avoidance Canon
Since our colleagues rest their decision on Chevron's
first step, they do not reach the constitutional avoidance argument
principally relied upon by petitioners and by the panel opinion we
vacated prior to hearing this appeal en banc. See Warger v.
Shauers, 135 S. Ct. 521, 529 (2014) (constitutional avoidance canon
"has no application in the absence of . . . ambiguity" (omission
in original) (internal quotation marks omitted)); Olmos, 780 F.3d
at 1321 (citing Warger in declining to consider the canon for
purposes of Chevron step one). Because we disagree with our
colleagues' conclusion that no reasonable person can read the
statute other than as they read it, we explain why the
constitutional avoidance canon, even if it may be appropriately
applied at Chevron step two,50 does not remove the BIA's decision
exists. But we simply fail to see how a reasonable reader construes the cross-reference as referring to a member of the delineated group as to whom the duty was in fact immediately executed. Section 1226(c)(1), which creates a forward-facing duty, is of course powerless to "describe" the class of people as to whom that duty will in fact be carried out.
50 An en banc panel of the Ninth Circuit determined that the constitutional avoidance canon "plays no role in the second Chevron inquiry." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc). The Tenth Circuit in Olmos cited that opinion approvingly, Olmos, 780 F.3d at 1323 & n.2, but also appeared to reject the merits of petitioner's constitutional avoidance argument in its step two analysis, id. at 1324. As the D.C. Circuit has noted (in a case also cited in Olmos), the Supreme Court has at least once indicated that the "canon of constitutional avoidance trumps Chevron deference." Nat'l Mining Ass'n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (citing Edward J.
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Case: 13-1994 Document: 00116936604 Page: 102 Date Filed: 12/23/2015 Entry ID: 5964508
in Rojas from the range of permissible interpretations requiring deference.51
Petitioners' basic claim in favor of applying the canon
is that a statutory command to detain aliens such as petitioners
who had peacefully resided in the community for years after their
release from criminal custody would raise serious constitutional
due process concerns. In accepting this claim, the panel opinion
relied on what seems to us to be a doubly flawed reading of Justice
Kennedy's concurring opinion in Demore.
First, the panel viewed Justice Kennedy's concurrence as
limiting the Demore majority's rationale for upholding section
1226(c). See Castañeda, 769 F.3d at 39 & n.4. The panel appeared
to be (erroneously) applying the Supreme Court's Marks principle,
which instructs that "[w]hen a fragmented Court decides a case and
no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)). Since we see no basis for the canon's application regardless, we decline to take any position on the canon's precise relevance to the Chevron analysis.
51 The Third and Fourth Circuits did not address the constitutional avoidance argument that petitioners press here. See Sylvain, 714 F.3d 150; Hosh, 680 F.3d 375. The Second and Tenth Circuits rejected it, see Lora, 2015 WL 6499951, at *9 n.20; Olmos, 780 F.3d at 1322–24, but the Tenth Circuit noted in a footnote that "[c]onstitutional considerations could become greater when the gap in custody is considerably longer than six days." Olmos, 780 F.3d at 1324 n.5.
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Case: 13-1994 Document: 00116936604 Page: 103 Date Filed: 12/23/2015 Entry ID: 5964508

the narrowest grounds." Marks v. United States, 430 U.S. 188, 193

(1977) (internal quotation marks omitted). But Justice Kennedy's

concurrence in Demore explicitly stated that he joined the

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

533 (Kennedy, J., concurring), so nothing therein limits the

majority's rationale for upholding section 1226(c).

Nor does Justice Kennedy's concurrence provide

persuasive authority in favor of petitioners' due process

argument. That concurrence expressed no reservation at all,

constitutional or otherwise, about the amount of time that passed

between the moment an alien became released and the moment of the

alien's detention. Rather, Justice Kennedy wrote separately to

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

alien spends in immigration detention while he waits for his

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

Clause prohibits arbitrary deprivations of liberty, a lawful

permanent resident alien such as respondent could be entitled to

an individualized determination as to his risk of flight and

dangerousness if the continued detention became unreasonable or

unjustified." (emphasis added)).

The concurrence's three

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

the constitutional limits upon the duration of post-removal-period

detention (and the only court case cited by the concurrence),

support that limited reading. - 103 -

Case: 13-1994 Document: 00116936604 Page: 104 Date Filed: 12/23/2015 Entry ID: 5964508
To be sure, the Demore majority addressed only the general application of section 1226(c) to an alien who had committed an (A)-(D) offense, without considering the precise constitutional consideration--the length of time an alien managed to avoid detention post-release--that petitioners now claim requires a resolution in their favor.52 But for the following reasons, we view this as a distinction without a difference with respect to whether the delay in commencing detention experienced by petitioners raises constitutional concerns.
Petitioners' argument rests on the premise that, once a law-breaking alien has been out of custody for several years, one can no longer regard him as presenting a sufficiently heightened risk of danger or flight, even once the alien finds out ICE now wants to deport him on grounds that will be hard to successfully contest. Neither petitioners nor the vacated panel opinion cite any controlling authority for this proposition, and we have great difficulty accepting this view of flight risk as a matter of common sense. See Olmos, 780 F.3d at 1323 ("[W]e do not abandon Chevron deference at the mere mention of a possible constitutional problem." (alteration in original) (quoting Kempthorne, 512 F.3d at 711)). It seems to us that Congress could have--and did--
52 Perhaps since he was detained the day after his release, Kim v. Ziglar, 276 F.3d 523, 526 (9th Cir. 2002), the petitioner in Demore made no argument about the timing of his release.
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Case: 13-1994 Document: 00116936604 Page: 105 Date Filed: 12/23/2015 Entry ID: 5964508
reasonably regard this group of aliens as categorically posing a flight risk because their commission of the designated crimes makes it highly likely that they will be deported if ICE comes knocking. Hence, there is little to lose by trying to hide, especially once a removal order issues. See S. Rep. No. 104-48, at 2-3 ("Undetained criminal aliens with deportation orders often abscond upon receiving a final notification [of removal]. . . . Too often, as one frustrated INS official told the Subcommittee staff, only the stupid and honest get deported."). The incentive to flee peaks once the criminal alien knows that ICE has decided to come after him. And while the incentive may be depressed while ICE ignores the alien, once ICE manifests an intention to proceed forthwith, the incentive to flee before the deportation proceeding ends would seem to be unrelated to any delay in making that manifestation.53
The view of petitioners and of the vacated panel opinion on this point is effectively that, if there is an individual fact showing a person poses a lesser risk of flight or danger (e.g., has been living in a community for years), then that person is
53 Imagine Aliens A and B in a detention center, each having committed the same section 1226(c) offense, and each similar in all ways, except ICE detained Alien A one day after release from state custody, and Alien B four years after release. Now imagine that each was suddenly released pending completion of his removal hearing. We can see no reason why we can say that, as a matter of constitutional law, Congress could not have reasonably viewed A and B as posing similar flight risks during the period between release and removal hearing.
- 105 -

Case: 13-1994 Document: 00116936604 Page: 106 Date Filed: 12/23/2015 Entry ID: 5964508
constitutionally entitled to a bail hearing. See Castañeda, 769 F.3d at 47-48 ("Mandatory detention of individuals such as the petitioners appears arbitrary on its face."). This view fundamentally pushes back on Congress's ability (affirmed in Demore) to say categorically that criminal aliens should not have the ability to flee while awaiting the reasonably prompt conclusion of their deportation hearings.54 We would therefore reject it.
We note, finally, that petitioners have raised no argument based on the duration of their detention, nor have they produced evidence that the BIA's interpretation of section 1226(c) will subject them to systemic delays or otherwise prolong the length of their detention prior to a hearing. Cf. Demore, 538 U.S. at 532 (Kennedy, J., concurring). As of the time that the Supreme Court last considered the statute, "in 85% of the cases in which aliens [were] detained pursuant to § 1226(c), removal proceedings [were] completed in an average time of 47 days and a median of 30 days." Demore, 538 U.S. at 529. To the extent that the Attorney General would attempt to use section 1226(c) to detain
54 Many statutes and cases in the criminal sentencing area give equal weight to prior criminal convictions irrespective of whether the individual was recently released from custody. A person qualifies, for example, for mandatory life imprisonment as a "violent felon" whether his predicate convictions occurred last year or six years ago. See 18 U.S.C. § 3559(c)(1). Accordingly, we cannot say that Congress could not regard the danger risk as materially reduced merely because the alien has spent some time out of custody.
- 106 -

Case: 13-1994 Document: 00116936604 Page: 107 Date Filed: 12/23/2015 Entry ID: 5964508
persons for materially more extended durations, see Lora, 2015 WL 6499951, at *12, we offer in this opinion no blessing of such detentions. Rather, we opine only that the constitutional arguments raised by petitioners here do not make impermissible the BIA's interpretation of section 1226(c), either facially or as applied to petitioners.
II. Conclusion For the foregoing reasons, we would hold that petitioners have the characteristics of "an alien described in" section 1226(c)(1), and that the Attorney General is correct in concluding that she therefore lacks the discretion to grant them a bond hearing.55
55 Petitioners do not argue that they qualify for the witness protection exception in section 1226(c)(2).
- 107 -

Case: 13-1994 Document: 00116938852 Page: 1 Date Filed: 12/30/2015 Entry ID: 5965811
United States Court of Appeals
For the First Circuit
No. 13-1994
LEITICIA CASTAÑEDA,
Petitioner, Appellee,
v.
STEVE SOUZA, Superintendent, Bristol County House of Corrections, in his official capacity and his successors and
assigns, Respondent, Appellant,
BRUCE E. CHADBOURNE, Field Office Director, Boston Field Office, Office of Detention and Removal, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; JOHN T.
MORTON, Director, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; JEH JOHNSON, Secretary, U.S. Department of Homeland Security, in his official capacity and
his successors and assigns; LORETTA E. LYNCH, Attorney General, U.S. Department of Justice, in her official capacity and her successors and assigns, Respondents.
No. 13-2509
CLAYTON RICHARD GORDON, on behalf of himself and others similarly situated,
Petitioner, Appellee,
PRECIOSA ANTUNES; GUSTAVO RIBEIRO FERREIRA; VALBOURN SAHIDD LAWES; NHAN PHUNG VU,
Petitioners,
- 1 -

Case: 13-1994 Document: 00116938852 Page: 2 Date Filed: 12/30/2015 Entry ID: 5965811
v.
LORETTA E. LYNCH, Attorney General; SARAH SALDANA, Director of Immigration and Customs Enforcement; SEAN GALLAGHER, Acting Field Office Director; CHRISTOPHER J. DONELAN; MICHAEL G. BELLOTTI, Sheriff; STEVEN W. TOMPKINS, Sheriff; THOMAS M.
HODGSON, Sheriff; JOSEPH D. MCDONALD, JR., Sheriff; RAND BEERS, Acting Secretary of Homeland Security,
Respondents, Appellants.
ERRATA SHEET
The cover sheet of the opinion is changed to reflect in each action the substitution of Attorney General Loretta E. Lynch for former Attorney General Eric H. Holder, Jr.
On the cover sheet, page 1, "Immigrations" is replaced with "Immigration"
On the cover sheet, page 2, "Hans. H. Chen" is replaced with "Hans H. Chen"
On the cover sheet, page 3, "Mathew E. Price" is replaced with "Matthew E. Price"
The opinion of Judge Barron, joined by Judges Torruella and Thompson, issued on December 23, 2015, is amended as follows:
On page 6, line 7, "Naturalization" is replaced with "Nationality"
On page 8, footnote 3, line 3, "sentenced to a term of imprisonment" is replaced with "sentence [sic] to a term of imprisonment"
On page 10, footnote 4, line 2, "Saysana, 590 F.3d at 14" is replaced with "Saysana v. Gillen, 590 F.3d 7, 14 (1st Cir. 2009)"
On page 10, footnote 5, line 4, "Immigrations" is replaced with "Immigration"
On page 15, footnote 10, line 2, "Saysana v. Gillen, 590 F. 3d 7, 13-18 (1st Cir. 2009)" is replaced with "Saysana, 590 F.3d at 13-18"
- 2 -

Case: 13-1994 Document: 00116938852 Page: 3 Date Filed: 12/30/2015 Entry ID: 5965811

On page 31, line 2, remove "in"

On page 32, line 11, "Department" is replaced with "Dep't"

On page 36, footnote 25, line 21, "by then-equivalent" is replaced with "by the then-equivalent"

On page 59, footnote 40, line 5, "See" is replaced with "See"

The concurrence of Judge Torruella, issued on December 23, 2015, is amended as follows:

On page 65, line 3: "petitioners'"

"defendants'" is replaced with

The opinion of Judge Kayatta, joined by Chief Judge Howard and Judge Lynch, issued on December 23, 2015, is amended as follows:

On page 103, lines 21-22, "a case dealing the constitutional limits" is replaced with "a case dealing with the constitutional limits"

- 3 -

 
 Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 1 of 29
ADVISE,CLOSED,STAYED
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:13−cv−30146−PBS

Gordon et al v. Napolitano et al Assigned to: Chief Judge Patti B. Saris related Case: 3:13−cv−30125−PBS Case in other court: USCA, 13−02509
USCA, 14−01385 USCA, 14−01559 USCA, 14−01729 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa Petitioner

Date Filed: 08/08/2013 Date Terminated: 07/17/2018 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Clayton Richard Gordon

represented by Adriana Lafaille American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3470 Email: alafaille@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Kautsky Hausman American Civil Liberties Union Foundation Immigrants Rights Project 125 Broad Street, 18th Floor New York, MA 10004 212−549−2549 Fax: 212−549−2654 Email: dhausman@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: msegal@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anant K. Saraswat Wolf, Greenfield & Sacks, PC 600 Atlantic Avenue Boston, MA 02210 617−646−8000 Email: asaraswat@wolfgreenfield.com ATTORNEY TO BE NOTICED

Elizabeth A. Badger PAIR Project 98 North Washington Street Ste. 106 Boston, MA 02114 617−545−3373 Fax: 617−742−9385

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 2 of 29

Email: ebadger@pairproject.org ATTORNEY TO BE NOTICED

Eunice Lee American Civil Liberties Union Federation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 (413)−343−0768 Fax: (413) 395−0950 Email: elee@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Judy Rabinovitz American Civil Liberties Union 18th Floor 125 Broad Street New York, NY 10004 212−549−2618 Fax: 212−549−2651 Email: jrabinovitz@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Michael Tan American Civil Liberties Union Federation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 (415)−343−0779 Fax: (415) 395−0950 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Michelle K. Nyein Wolf, Greenfield & Sacks, PC 600 Atlantic Avenue Boston, MA 02210 617−646−8000 Email: mnyein@wolfgreenfield.com ATTORNEY TO BE NOTICED

Petitioner
Preciosa Antunes TERMINATED: 10/17/2013

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth A. Badger (See above for address) ATTORNEY TO BE NOTICED

Eunice Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 3 of 29

Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Gustavo Ribeiro Ferreira

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Kautsky Hausman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anant K. Saraswat (See above for address) ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) ATTORNEY TO BE NOTICED

Michelle K. Nyein (See above for address) ATTORNEY TO BE NOTICED

Petitioner Valbourn Sahidd Lawes

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Kautsky Hausman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anant K. Saraswat (See above for address) ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) ATTORNEY TO BE NOTICED

Michelle K. Nyein (See above for address) ATTORNEY TO BE NOTICED

Petitioner Nhan Phung Vu

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 4 of 29

Petitioner Cesar Chavarria Restrepo

David Kautsky Hausman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anant K. Saraswat (See above for address) ATTORNEY TO BE NOTICED
Matthew Segal (See above for address) ATTORNEY TO BE NOTICED
Michelle K. Nyein (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Kautsky Hausman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anant K. Saraswat (See above for address) ATTORNEY TO BE NOTICED
Matthew Segal (See above for address) ATTORNEY TO BE NOTICED
Michelle K. Nyein (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Secretary Janet Napolitano TERMINATED: 12/20/2013

represented by Aram A. Gavoor United States Department of Justice Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202−305−8014 Email: aram.gavoor@usdoj.gov TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Goodwin United States Attorney's Office 300 State Street Suite 230 Springfield, MA 01105 413−785−0269

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 5 of 29

Fax: 413−785−0394 Email: karen.goodwin@usdoj.gov ATTORNEY TO BE NOTICED

Respondent U.S. Atty General Eric H. Holder, Jr.

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian United States Department of Justice Office of Immigration 450 Fifth Street NW Washington, DC 20001 202−532−4824 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, DC 20044 202−616−9752 Fax: 202−633−0397 Email: elizabeth.stevens@usdoj.gov TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go U.S. Department of Justice, Civil Division 450 5th Street NW Washignton, DC 20044 202−353−9923 Email: samuel.go@usdoj.gov ATTORNEY TO BE NOTICED

Respondent Acting Director John Sandweg

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address)

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 6 of 29

ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent Acting Fld. Off. Dir Sean Gallagher

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent Christopher J. Donelan

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Jeffrey T. Collins Office of the Attorney General Trial Division One Ashburton Place 18th Floor Boston, MA 02108 617−727−2200 Fax: 617−727−3076 Email: jeffrey.collins@state.ma.us ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 7 of 29

(See above for address) ATTORNEY TO BE NOTICED

Respondent Sheriff Michael G. Bellotti

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Jeffrey T. Collins (See above for address) ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent Sheriff Steven W. Tompkins

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Jeffrey T. Collins (See above for address) ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent Sheriff Thomas M. Hodgson

represented by

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 8 of 29

Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Jeffrey T. Collins (See above for address) ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent Sheriff Joseph D. McDonald, Jr.

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Jeffrey T. Collins (See above for address) ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent
Rand Beers Acting Secretary of Homeland Security

represented by Aram A. Gavoor (See above for address) TERMINATED: 03/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 9 of 29

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) TERMINATED: 12/29/2016 ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Respondent Jeh Charles Johnson

represented by Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/08/2013 08/08/2013 08/08/2013
08/09/2013 08/09/2013

# Docket Text
1 COMPLAINT for classwide relief and petition for writ of habeas corpus against All Defendants Filing fee: $ 400, receipt number 0101−4581562 (Fee Status: Filing Fee paid), filed by Preciosa Antunes, Clayton Richard Gordon. (Attachments: # 1 Civil Cover Sheet, # 2 Category Sheet)(Lafaille, Adriana) (Entered: 08/08/2013)
2 MOTION for Preliminary Injunction by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 08/08/2013)
3 MEMORANDUM in Support re 2 MOTION for Preliminary Injunction filed by Preciosa Antunes, Clayton Richard Gordon. (Attachments: # 1 Exhibit List, # 2 Exhibit A (Gordon − Notice to Appear), # 3 Exhibit B (Gordon − military document), # 4 Exhibit C (Gordon − honorable discharge), # 5 Exhibit D (Gordon − conviction record), # 6 Exhibit E (Gordon − probation letter), # 7 Exhibit F (Gordon − Wierzchowski affidavit), # 8 Exhibit G (Gordon − Nolan affidavit), # 9 Exhibit H (Gordon − Patel affidavit), # 10 Exhibit I (Gordon − custody order), # 11 Exhibit J (Antunes − Notice to Appear), # 12 Exhibit K (Antunes − Cruz affidavit), # 13 Exhibit L (Antunes − 2006 conviction record), # 14 Exhibit M (Antunes − burglary police report), # 15 Exhibit N (Antunes − 2011 burglary conviction), # 16 Exhibit O (Antunes − larceny police report), # 17 Exhibit P (Antunes − 2011 larceny conviction), # 18 Exhibit Q (Antunes − Chakravartty affidavit), # 19 Exhibit R (Antunes − sealed exhibit), # 20 Exhibit S (Castaneda Notice of Release), # 21 Exhibit T (Silverman affidavit))(Lafaille, Adriana) (Entered: 08/08/2013)
4 NOTICE of Case Assignment. Magistrate Judge Kenneth P. Neiman assigned to case. Plaintiff's counsel, or defendant's counsel if this case was initiated by the filing of a Notice of Removal, are directed to the Notice and Procedures regarding Consent to Proceed before the Magistrate Judge which can be downloaded here. These documents will be mailed to counsel not receiving notice electronically. (Attachments: # 1 Standing Order)(Abaid, Kimberly) (Entered: 08/09/2013)
5 Summons Issued as to Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Lindsay, Maurice) (Entered: 08/09/2013)

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 10 of 29

08/09/2013 08/09/2013 08/15/2013 08/20/2013 08/21/2013
08/21/2013 08/22/2013 08/26/2013 08/26/2013 08/27/2013 08/27/2013 08/27/2013
08/27/2013 08/30/2013 08/30/2013
08/30/2013

6 MOTION to Seal Document Exhibit R to Memorandum of Law in Support of Motion for Preliminary Injunctive Relief by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 08/09/2013)
7 NOTICE of Appearance by Matthew Segal on behalf of Preciosa Antunes, Clayton Richard Gordon (Segal, Matthew) (Entered: 08/09/2013)
8 Online access to documents in this case is limited to counsel of record only. All documents are available for review in the Office of the Clerk. Counsel of record: please note that you will need to log into CM/ECF to access any documents in this case. (Alves−Baptista, Antonia) (Entered: 08/15/2013)
9 NOTICE of Appearance by Aram A. Gavoor on behalf of Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins (Gavoor, Aram) (Entered: 08/20/2013)
10 NOTICE of Appearance by Karen L. Goodwin on behalf of Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins (Goodwin, Karen) (Main Document 10 replaced on 8/22/2013 with a notice of appearance in the correct PDF format) (Finn, Mary). Modified on 8/22/2013 (Finn, Mary). (Entered: 08/21/2013)
11 Not all parties consented to assignment of case to Magistrate Judge Neiman. Case to be reassigned to Judge Michael A. Ponsor. . (Lafaille, Adriana) (Entered: 08/21/2013)
12 ELECTRONIC NOTICE of Reassignment. Judge Michael A. Ponsor added. (Abaid, Kimberly) (Entered: 08/22/2013)
13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins.(Gavoor, Aram) (Entered: 08/26/2013)
14 Assented to MOTION for Leave to File Excess Pages by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins. (Attachments: # 1 Memorandum)(Gavoor, Aram) (Entered: 08/26/2013)
15 NOTICE of Appearance by Elizabeth A. Badger on behalf of Preciosa Antunes, Clayton Richard Gordon (Badger, Elizabeth) (Entered: 08/27/2013)
16 MOTION to Certify Class by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 08/27/2013)
17 MEMORANDUM in Support re 16 MOTION to Certify Class filed by Preciosa Antunes, Clayton Richard Gordon. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 Declaration of Michael Tan, # 3 Exhibit 2 Record of Deportable/Inadmissible Alien, # 4 Exhibit 3 ICE News Releases, # 5 Exhibit 4 Declaration of Elizabeth Badger)(Lafaille, Adriana) (Attachment 5 replaced on 8/29/2013) (Lindsay, Maurice). (Entered: 08/27/2013)
18 Assented to MOTION to Seal Document Ex. A to Badger Declaration by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 08/27/2013)
19 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 18 Motion to Seal Document (Pelegano, Theresa) (Entered: 08/30/2013)
20 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 14 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Pelegano, Theresa) (Entered: 08/30/2013)
21 MEMORANDUM in Support re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 14 Assented to MOTION for Leave to File Excess Pages filed by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Clayton Richard Gordon,

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 11 of 29

09/05/2013 09/06/2013 09/09/2013 09/11/2013
09/11/2013
09/11/2013 09/11/2013 09/13/2013 09/16/2013
09/16/2013 09/17/2013 09/18/2013

Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins. (Goodwin, Karen) (Entered: 08/30/2013)
22 Assented to MOTION for Leave to File Reply in support of Motion for Preliminary Injunctive Relief and request for habeas corpus relief by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 09/05/2013)
23 MOTION to Stay re 16 MOTION to Certify Class "Motion to Stay Class Certification Briefing Pending Ruling on Motion to Dismiss" by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins.(Gavoor, Aram) (Entered: 09/06/2013)
24 Opposition re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Reply in Support of Petition for Writ of Habeas Corpus and Motion for Preliminary Injunctive Relief filed by Preciosa Antunes, Clayton Richard Gordon. (Lafaille, Adriana) (Entered: 09/09/2013)
25 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 23 Motion to Stay Class Certification briefing Pending ruling on motion to dismiss and memorandum in support. ALLOWED. The court will set for argument the motion for preliminary injunction (Dkt.2) as it pertains to the individual plaintiffs and the motion to dismiss (Dkt.13) before taking up the motion to certify a class. So ordered. (Lindsay, Maurice) (Entered: 09/11/2013)
26 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 22 Motion for Leave to File Reply; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 09/11/2013)
27 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 6 Motion to Seal Exhibit. ALLOWED. (Lindsay, Maurice) (Entered: 09/11/2013)
28 Opposition re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Reply in Support of Petition for Writ of Habeas Corpus and Motion for Preliminary Injunctive Relief (Leave to File Granted on September 11, 2013) filed by Preciosa Antunes, Clayton Richard Gordon. (Lafaille, Adriana) (Entered: 09/11/2013)
29 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Judy Rabinovitz Filing fee: $ 100, receipt number 0101−4633355 by Preciosa Antunes, Clayton Richard Gordon. (Attachments: # 1 Affidavit)(Segal, Matthew) (Entered: 09/13/2013)
30 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 29 Motion for Leave to Appear Pro Hac Vice Added Judy Rabinovitz. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 09/16/2013)
31 Assented to MOTION for Leave to File Reply in Support of Motion to Dismiss, due September 24, 2013 by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins.(Gavoor, Aram) (Entered: 09/16/2013)
32 ELECTRONIC NOTICE Setting Hearing on Motion 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 2 MOTION for Preliminary Injunction : Motion Hearing set for 10/23/2013 03:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 09/17/2013)
33 Assented to MOTION to Expedite / Reschedule Hearing to Date Between October 15 and 22, 2013, If Available by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 09/18/2013)

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 12 of 29

09/19/2013
09/23/2013 09/23/2013 09/24/2013 09/25/2013 09/27/2013 09/30/2013
10/07/2013 10/08/2013
10/15/2013 10/17/2013 10/17/2013
10/23/2013

34 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 31 Motion for Leave to File Document; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 09/19/2013)
35 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 33 Motion to Expedite hearing. The clerk will reschedule. (Pelegano, Theresa) (Entered: 09/23/2013)
36 ELECTRONIC NOTICE Resetting Hearing on Motion 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 2 MOTION for Preliminary Injunction : Motion Hearing set for 10/17/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 09/23/2013)
37 REPLY to Response to 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins. (Gavoor, Aram) (Entered: 09/24/2013)
38 NOTICE by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins Notice of Imminent Removal of Preciosa Antunes (Gavoor, Aram) (Entered: 09/25/2013)
39 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Eunice Lee Filing fee: $ 100, receipt number 0101−4654787 by Preciosa Antunes, Clayton Richard Gordon. (Attachments: # 1 Affidavit)(Segal, Matthew) (Entered: 09/27/2013)
40 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 39 Motion for Leave to Appear Pro Hac Vice Added Eunice Lee. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 09/30/2013)
41 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Michael Tan Filing fee: $ 100, receipt number 0101−4668187 by Preciosa Antunes, Clayton Richard Gordon. (Attachments: # 1 Affidavit)(Segal, Matthew) (Entered: 10/07/2013)
42 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 41 Motion for Leave to Appear Pro Hac Vice Added Michael Tan. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 10/08/2013)
43 Assented to MOTION to Withdraw Preciosa Antunes as Plaintiff−Petitioner by Preciosa Antunes, Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 10/15/2013)
44 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 43 Motion to Withdraw Preciosa Antunes as Plaintiff−Petitioner. ALLOWED. (Lindsay, Maurice) (Entered: 10/17/2013)
45 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 10/17/2013 re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., Janet Napolitano, John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, 2 MOTION for Preliminary Injunction filed by Preciosa Antunes, Clayton Richard Gordon. Argument completed. Court takes case under advisement. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 10/18/2013)
46 NOTICE by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 13 of 29

10/23/2013
10/25/2013 10/25/2013 10/31/2013 11/01/2013
11/04/2013 11/04/2013 11/07/2013 11/08/2013 11/08/2013 11/08/2013

Sandweg, Steven W. Tompkins re 45 Motion Hearing,, NOTICE OF CLARIFICATION (Gavoor, Aram) (Entered: 10/23/2013)
47 Judge Michael A. Ponsor: ORDER REGARDING PLAINTIFF'S PETITION entered. As follows: In order to avoid needless delay to Plaintiff while this courts more detailed memorandum is prepared, Plaintiffs individual petition for writ of habeas corpus (Dkt. No. 1 ) is hereby ALLOWED, Plaintiffs Motion for Preliminary Injunction (Dkt. No. 2 ) is DENIED without prejudice, and Defendants Motion to Dismiss is DENIED (Dkt. No. 13 ). Defendants are hereby ordered to grant Plaintiff an individualized bond hearing within thirty days of this order. Also within thirty days, counsel will file a memoranda on the question of whether it is proper for the court to retain the case to resolve the class−wide allegations. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 10/23/2013)
48 Transcript of Motion Hearing held on October 17, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 11/15/2013. Redacted Transcript Deadline set for 11/25/2013. Release of Transcript Restriction set for 1/23/2014. (Scalfani, Deborah) (Entered: 10/25/2013)
49 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/25/2013)
50 Joint MOTION for Extension of Time to File [Joint Motion to Set Sequential Briefing Schedule] by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Clayton Richard Gordon, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins.(Gavoor, Aram) (Entered: 10/31/2013)
51 NOTICE by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins re 47 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss for Failure to State a Claim,,,,,, Notice of Bond Hearing Scheduling (Attachments: # 1 Exhibit A − Form I−286, Notice of Custody Determination, # 2 Exhibit B − Notice of Custody Redetermination Hearing)(Gavoor, Aram) (Entered: 11/01/2013)
52 ELECTRONIC NOTICE Setting Hearing on Motion 50 Joint MOTION for Extension of Time to File [Joint Motion to Set Sequential Briefing Schedule] : Motion Hearing set for 12/19/2013 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 11/04/2013)
53 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 50 Motion for Extension of Time to File. The proposed superseding schedule is adopted and so ordered. Counsel will appear for argument on 12/19/13 at 10 am. (Pelegano, Theresa) (Entered: 11/04/2013)
54 ELECTRONIC NOTICE Setting Hearing on Motion 16 MOTION to Certify Class : ***TIME CHANGE***** Motion Hearing set for 12/19/2013 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 11/07/2013)
55 MOTION for Leave to File Amended Complaint by Clayton Richard Gordon. (Attachments: # 1 Proposed Amended Class Action Complaint and Petition for Writ of Habeas Corpus)(Lafaille, Adriana) (Entered: 11/08/2013)
56 MEMORANDUM in Support re 55 MOTION for Leave to File Amended Complaint filed by Clayton Richard Gordon. (Lafaille, Adriana) (Entered: 11/08/2013)
57 Proposed Document(s) submitted by Clayton Richard Gordon. Document received: Proposed Amended Memorandum of Law in Support of Motion for Certification of Class. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 Michael Tan Declaration, # 3 Exhibit 2 Gordon I−213, # 4 Exhibit 3 ICE News Releases, # 5 Exhibit 4 Elizabeth

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 14 of 29

11/22/2013 12/06/2013
12/11/2013 12/13/2013 12/16/2013
12/16/2013 12/16/2013 12/16/2013
12/17/2013 12/18/2013 12/19/2013
12/19/2013

Badger Declaration, # 6 Exhibit 5 Lawes I−213)(Lafaille, Adriana) (Entered: 11/08/2013)
59 MEMORANDUM in Support re 55 MOTION for Leave to File Amended Complaint and in response to Court's Oct. 23, 2013 Order filed by Clayton Richard Gordon. (Lafaille, Adriana) (Entered: 11/22/2013)
60 Opposition re 16 MOTION to Certify Class , 55 MOTION for Leave to File Amended Complaint Defendants−Respondents' Non−Opposition to Class Action Jurisdiction, Conditional Opposition to the Proposed Amended Complaint and Opposition to Class Certification filed by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins. (Gavoor, Aram) (Entered: 12/06/2013)
61 Assented to MOTION for Leave to File Reply in support of Motion for Certification of Class by Clayton Richard Gordon.(Lafaille, Adriana) (Entered: 12/11/2013)
62 REPLY to Response to 16 MOTION to Certify Class filed by Clayton Richard Gordon. (Lafaille, Adriana) (Entered: 12/13/2013)
63 NOTICE OF APPEAL as to 47 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss for Failure to State a Claim,,,,,, by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, Janet Napolitano, John Sandweg, Steven W. Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 1/6/2014. (Gavoor, Aram) (Entered: 12/16/2013)
64 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 63 Notice of Appeal. (Paine, Matthew) (Entered: 12/16/2013)
65 USCA Case Number 13−2509 for 63 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., Janet Napolitano, John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins. (Entered: 12/16/2013)
66 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 61 Motion for Leave to File Reply in support of Motion for Certification of Class; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 12/17/2013)
67 REPLY to Response to 16 MOTION to Certify Class filed by Clayton Richard Gordon. (Lafaille, Adriana) (Entered: 12/17/2013)
68 ELECTRONIC NOTICE OF RESCHEDULING***** TIME CHANGE******The Motion Hearing 12/19/2013 will be at 12:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 12/18/2013)
69 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 55 Motion for Leave to File Amended Complaint; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 12/19/2013)
70 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 12/19/2013 re 16 MOTION to Certify Class filed by Clayton Richard Gordon, Preciosa Antunes, 55 MOTION for Leave to File Amended Complaint filed by Clayton Richard Gordon. Motion to amend is allowed. Motion to Certify class is taken under advisement. Status report due 1/3/14 re: possible supp.

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 15 of 29

12/20/2013 12/20/2013 12/20/2013 12/24/2013 12/24/2013
12/30/2013
12/30/2013 12/31/2013 12/31/2013 01/14/2014

brief and possible SJ motion. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: LAfaille, Segal, Gavoor, Badger, Lee, Robinovitz) (Pelegano, Theresa) (Entered: 12/20/2013)
71 Set/Reset Deadlines: Status Report due by 1/3/2014. (Finn, Mary) (Entered: 12/20/2013)
72 AMENDED COMPLAINT against Sean Gallagher, Joseph D. McDonald, Jr, Janet Napolitano, Christopher J. Donelan, Steven W. Tompkins, Michael G. Bellotti, Eric H. Holder, Jr., Thomas M. Hodgson, John Sandweg, filed by Clayton Richard Gordon, Gustavo Ribeiro Ferreira, Valbourn Sahidd Lawes, Nhan Phung Vu.(Lafaille, Adriana) (Main Document 72 replaced on 12/20/2013 with correct captioned main document) (Finn, Mary). Modified on 12/20/2013 (Finn, Mary). (Entered: 12/20/2013)
73 Summons Issued as to Rand Beers. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Finn, Mary) (Entered: 12/20/2013)
74 MOTION for Order to Show Cause by Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Lafaille, Adriana) (Entered: 12/24/2013)
75 MEMORANDUM in Support re 74 MOTION for Order to Show Cause filed by Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Exhibit List, # 2 Exhibit A Declaration of Natasha Lewis, # 3 Exhibit B Declaration of Gustavo Ferreira, # 4 Exhibit C Declaration of Telfa Williams, # 5 Exhibit D Ferreira − Notice to Appear, # 6 Exhibit E Ferreira − Conviction Record, # 7 Exhibit F Ferreira − June 2010 Arrest Record, # 8 Exhibit G Ferreira − Sept 2010 Arrest Record, # 9 Exhibit H Ferreira − Notice of Completion of Probation, # 10 Exhibit I Lawes − Notice to Appear, # 11 Exhibit J Lawes − Conviction Record, # 12 Exhibit K Lawes − Order of Immigration Judge, # 13 Exhibit L Vu − Notice to Appear, # 14 Exhibit M Vu − Custody Order, # 15 Exhibit N Vu − Conviction Record)(Lafaille, Adriana) (Entered: 12/24/2013)
76 Transcript of Motion Hearing held on December 19, 2013, before Judge Michael A. Ponsor. COA Case No. 13−2509. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 1/20/2014. Redacted Transcript Deadline set for 1/30/2014. Release of Transcript Restriction set for 3/31/2014. (Scalfani, Deborah) (Entered: 12/30/2013)
77 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/30/2013)
78 Joint MOTION for Extension of Time (Joint Motion to Set Briefing Schedule) by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Gustavo Ribeiro Ferreira, Sean Gallagher, Clayton Richard Gordon, Thomas M. Hodgson, Eric H. Holder, Jr., Valbourn Sahidd Lawes, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins, Nhan Phung Vu.(Gavoor, Aram) (Entered: 12/31/2013)
79 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered RE: Plaintiff's Petition for Writ of Habeas Corpus, Plaintiff's Motion for Preliminary Injunction, and Defendant's Motion to Dismiss. (Pelegano, Theresa) (Entered: 12/31/2013)
80 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. Regarding 78 Joint Motion to set briefing schedule. The dates proposed by counsel have been slightly adjusted to accommodate the fact that the court has required some time to rule on this motion. The court orders as follows: Defendants will file their response to the petitions for habeas corpus by 1/24/14, Plaintiffs will file their motion for summary judgment and supplemental class certification noby 1/24/14, Plaintiffs opposition to Defendants cross−motion for summary judgment and reply in support of the motion

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 16 of 29

01/17/2014 01/22/2014 01/24/2014 01/24/2014
01/24/2014
02/03/2014 02/06/2014 02/07/2014 02/14/2014 02/19/2014 02/24/2014 03/10/2014 03/10/2014

for summary judgment due 2/24/14, Defendants reply in support of its cross−motion for summary judgment due 3/6/14, and Counsel will appear again for argument on the pending motions on 3/18/2014 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 01/14/2014)
81 ANSWER to 72 Amended Complaint, by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins.(Gavoor, Aram) (Entered: 01/17/2014)
82 NOTICE of Appearance by Elizabeth J. Stevens on behalf of Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins (Stevens, Elizabeth) (Entered: 01/22/2014)
83 MOTION for Summary Judgment by Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Lafaille, Adriana) (Entered: 01/24/2014)
84 MEMORANDUM in Support re 83 MOTION for Summary Judgment and Supplemental Submission in Support of Class Certification filed by Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Appendix, # 2 Statement of Facts)(Lafaille, Adriana) (Entered: 01/24/2014)
85 RESPONSE/ANSWER to Mssrs Ferreira,Lawes, and Vu's Petition for a Writ of Habeas Corpus 72 Amended Complaint, 75 by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Stevens, Elizabeth) (Entered: 01/24/2014)
86 NOTICE of Appearance by Jeffrey T. Collins on behalf of Michael G. Bellotti, Christopher J. Donelan, Thomas M. Hodgson, Joseph D. McDonald, Jr, Steven W. Tompkins (Collins, Jeffrey) (Entered: 02/03/2014)
87 NOTICE of Appearance by Sarah B. Fabian on behalf of Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins (Fabian, Sarah) (Entered: 02/06/2014)
88 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 74 Motion for Order to Show Cause. ALLOWED. For the reasons set forth in Dkt.79, Respondents are hereby ordered to provide these three Petitioners with an individualized bond hearing no later than March 28, 2014. (Lindsay, Maurice) (Entered: 02/07/2014)
89 Opposition re 83 MOTION for Summary Judgment filed by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Fabian, Sarah) (Entered: 02/14/2014)
90 NOTICE of Withdrawal of Appearance by Aram A. Gavoor (Gavoor, Aram) (Entered: 02/19/2014)
91 REPLY to Response to 83 MOTION for Summary Judgment and in Further Support of Class Certification filed by Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Lafaille, Adriana) (Entered: 02/24/2014)
93 Assented to MOTION for Leave to File Second Amended Complaint by Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu, Cesar Chavarria Restrepo. (Attachments: # 1 Proposed Second Amended Complaint)(Lafaille, Adriana) (Entered: 03/10/2014)
94 MEMORANDUM in Support re 93 Assented to MOTION for Leave to File Second Amended Complaint filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Lafaille, Adriana) (Entered: 03/10/2014)

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03/11/2014 03/12/2014 03/18/2014
03/18/2014
03/19/2014 03/21/2014 03/25/2014 03/25/2014 03/25/2014
03/25/2014 03/25/2014 03/25/2014

95 ELECTRONIC NOTICE OF RESCHEDULING ** TIME CHANGE AND COURTROOM CHANGED****Hearing set for 3/18/2014 03:00 PM in Franklin Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 03/11/2014)
96 Notice of Supplemental Authorities re 16 MOTION to Certify Class , 83 MOTION for Summary Judgment (Attachments: # 1 Supplemental Authority)(Lafaille, Adriana) (Entered: 03/12/2014)
97 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 93 Motion for Leave to File Amended Complaint; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 03/19/2014)
98 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 3/18/2014 re 16 MOTION to Certify Class filed by Clayton Richard Gordon, Preciosa Antunes, 83 MOTION for Summary Judgment filed by Valbourn Sahidd Lawes, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Nhan Phung Vu. Argument completed. Order to issue. Proposed stipulation due on 3/21/14. (Court Reporter: Carol Scott at 617−330−1377.)(Attorneys present: Lafaille, Segal, Badger, Fabian) (Pelegano, Theresa) (Entered: 03/19/2014)
99 AMENDED COMPLAINT against Joseph D. McDonald, Jr, Christopher J. Donelan, Sean Gallagher, Steven W. Tompkins, Michael G. Bellotti, Eric H. Holder, Jr., Thomas M. Hodgson, John Sandweg, Jeh Charles Johnson, filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Lafaille, Adriana) (Entered: 03/19/2014)
100 JOINT STATEMENT of counsel Regarding Case Procedure. (Fabian, Sarah) (Entered: 03/21/2014)
101 NOTICE by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu Notice of Custody Hearing for Cesar Chavarria Restrepo on March 27, 2014 (Lafaille, Adriana) (Entered: 03/25/2014)
102 MOTION to Certify Class by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Lafaille, Adriana) (Entered: 03/25/2014)
103 MEMORANDUM in Support re 102 MOTION to Certify Class (Refiled) filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 Declaration of Michael Tan, # 3 Exhibit 2 Record of Deportable/Inadmissible Alien (Gordon), # 4 Exhibit 3 ICE News Releases, # 5 Exhibit 4 Declaration of Elizabeth Badger, # 6 Exhibit 5 Record of Deportable/Inadmissible Alien (Lawes))(Lafaille, Adriana) (Entered: 03/25/2014)
104 Assented to MOTION to Seal Document Declaration of Elizabeth Badger (ECF No. 103−5) by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Lafaille, Adriana) (Additional attachment(s) added on 3/31/2014: # 1 Proposed Declaration of Elizabeth Badger to be sealed) (Lindsay, Maurice). (Entered: 03/25/2014)
105 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins.(Fabian, Sarah) (Entered: 03/25/2014)
106 MEMORANDUM in Support re 105 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Second Amended Complaint and Response to Petition for Writ of Habeas Corpus filed by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Fabian, Sarah) (Entered: 03/25/2014)

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03/25/2014 03/25/2014
03/25/2014 03/26/2014 03/26/2014
03/26/2014 03/26/2014 03/27/2014
03/28/2014 04/02/2014 04/07/2014

107 MOTION for Summary Judgment by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Lafaille, Adriana) (Entered: 03/25/2014)
108 MEMORANDUM in Support re 107 MOTION for Summary Judgment (Refiled) filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Appendix, # 2 Statement of Facts)(Lafaille, Adriana) (Main Document 108 replaced on 3/26/2014 with the correct main document) (Finn, Mary). Modified on 3/26/2014 (Finn, Mary). (Entered: 03/25/2014)
109 STATEMENT of Undisputed Material Facts in Support of Plaintiffs' 107 MOTION for Summary Judgment . (Lindsay, Maurice) (Entered: 03/26/2014)
110 MEMORANDUM in Opposition re 105 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Response in Support of Petition for Writ of Habeas Corpus of Plaintiff Chavarria filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Lafaille, Adriana) (Entered: 03/26/2014)
111 Notice of correction to docket made by Court staff. The memorandum (Dkt. No. 108) was edited because the statement of facts was incorrectly attached. The statement of facts is not an acceptable attachment, The CM/ECF procedures require that the statement of facts must be docketed separately with a separate docket entry number, the statement of facts have been removed and re−docketed separately. (See Dkt. No. 109) (Lindsay, Maurice) (Entered: 03/26/2014)
112 MEMORANDUM in Opposition re 107 MOTION for Summary Judgment (refiled) filed by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Fabian, Sarah) (Entered: 03/26/2014)
113 MEMORANDUM in Opposition re 102 MOTION to Certify Class (refiled) filed by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Fabian, Sarah) (Entered: 03/26/2014)
114 Judge Michael A. Ponsor: ORDER Regarding Plaintiffs' Motion for class certification,Plaintiff Cesar Chaverria Restrepo's individual Habeas Petition, and Defendants' Motion to Dismiss, entered. As follows: For the reasons set forth in the attached order, the court hereby ALLOWS Plaintiffs' Motions for Class Certification, (Dkt. Nos. 16 & 102 ), GRANTS Plaintiff Chavarria's petition for habeas corpus, (Dkt. No. 99 ), and DENIES Defendants' Motion to Dismiss, (Dkt. No. 105 ) Defendants' shall provide Plaintiff Chavarria an individualized bond hearing as detailed in the parties' joint submissions. (Dkt. No 100 .) See the attached order for complete details. (Lindsay, Maurice) (Entered: 03/27/2014)
115 NOTICE by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu Notice of Bond Hearing (Lafaille, Adriana) (Entered: 03/28/2014)
116 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 104 Motion to Seal Document (Pelegano, Theresa) (Entered: 04/02/2014)
117 NOTICE OF APPEAL as to 88 Order on Motion for Order to Show Cause, by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 4/28/2014. (Fabian, Sarah) (Entered: 04/07/2014)

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04/07/2014 04/07/2014 05/21/2014 05/23/2014
05/27/2014 05/27/2014 05/29/2014 06/03/2014 06/27/2014 06/27/2014 07/02/2014
07/02/2014

118 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 117 Notice of Appeal. (Paine, Matthew) (Entered: 04/07/2014)
119 USCA Case Number 14−1385 for 117 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. (Paine, Matthew) (Entered: 04/07/2014)
120 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, the court hereby ALLOWS Plaintiffs Motions for Summary Judgment. (Dkt. Nos. 83 & 107 .) The clerk shall set this matter for a status conference on September 15, 2014, at 3:00 p.m., to review Defendants compliance with this order, and to discuss entry of final judgment. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 05/21/2014)
121 NOTICE OF APPEAL as to 114 Order on Motion to Certify Class,,, Order on Motion to Dismiss for Failure to State a Claim,,,,, by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 6/12/2014. (Fabian, Sarah) (Entered: 05/23/2014)
122 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 121 Notice of Appeal. (Paine, Matthew) (Entered: 05/27/2014)
123 USCA Case Number 14−1559 for 121 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. (Paine, Matthew) (Entered: 05/27/2014)
124 ELECTRONIC NOTICE of Hearing. Status Conference set for 9/15/2014 03:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 05/29/2014)
125 Joint MOTION for Protective Order by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Attachments: # 1 Text of Proposed Order Protective Order)(Fabian, Sarah) (Entered: 06/03/2014)
126 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 125 Motion for Protective Order. ALLOWED. (Lindsay, Maurice) (Entered: 06/27/2014)
127 Judge Michael A. Ponsor: ORDER entered. PROTECTIVE ORDER, see attached order for details. (Lindsay, Maurice) (Entered: 06/27/2014)
128 NOTICE OF APPEAL as to 120 Order on Motion for Summary Judgment,,, by Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 7/22/2014. (Fabian, Sarah) (Entered: 07/02/2014)
129 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 128 Notice of Appeal. (Paine, Matthew) (Entered: 07/02/2014)

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07/02/2014 07/20/2014 07/22/2014 08/07/2014
09/08/2014 09/15/2014 09/15/2014 09/17/2014
12/10/2014 01/16/2015 01/16/2015 01/16/2015

130 USCA Case Number 14−1729 for 128 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. (Paine, Matthew) (Entered: 07/02/2014)
131 NOTICE by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins Lodging Exhibits (Attachments: # 1 Exhibit Boston, # 2 Exhibit Hartford, # 3 Exhibit EOIR, # 4 Exhibit Statement)(Fabian, Sarah) (Entered: 07/20/2014)
132 Judge Michael A. Ponsor: Order Regarding Supplemental Status Report entered. The court hereby ORDERS that, on or before September 8, 2014, Defendants shall submit to this court a supplemental report that complies with the requirements of this order. See the attached order for details. (Kaplan, Jennifer) (Entered: 07/22/2014)
133 ELECTRONIC NOTICE Setting Hearing on (144 in 3:13−cv−30125−MAP) MOTION For Enforcement or Modification of Class Certification Order, For Limited Discovery, and to Modify Motion for Discovery ISSUED, cc:cl. The Status Conference originally scheduled for 9/15/2014 at 4:00 PM in Hampden Courtroom before Judge Michael A. Ponsor is hereby converted into a motion hearing. Associated Cases: 3:13−cv−30125−MAP, 3:13−cv−30146−MAP(Healy, Bethaney) (Entered: 08/07/2014)
135 NOTICE by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins Notice of Lodging (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fabian, Sarah) (Entered: 09/08/2014)
136 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Status Conference moved to 9/15/2014 at 4:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 09/15/2014)
138 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 9/15/2014. Colloquy re: status of case. Schedule established by the court− order to issue. (Counsel: Fafaille, Segal, Stevens) (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).) (Healy, Bethaney) (Entered: 09/22/2014)
137 Judge Michael A. Ponsor: ORDER RE: STATUS REPORT entered. As follows: For the reasons stated, counsel for Defendants are ordered to submit a further status report regarding class members, containing the details specified in the courts order of July 22, 2014, no later than January 16, 2015. Counsel will appear before this court for a status conference to discuss the contents of this report on January 20, 2015 at 2:30 p.m. in Hampden Courtroom before Judge Michael A. Ponsor. See the attached order for complete details. (Lindsay, Maurice) (Entered: 09/17/2014)
139 Judge Michael A. Ponsor: MEMORANDUM AND ORDER ENTERED regarding Plaintiffs' Motion for Enforcement or Modification of Class Certification Order and for Limited Discovery (Doc. No. 144), cc:cl. See Order for details. Associated Cases: 3:13−cv−30125−MAP, 1:14−cv−14229−LTS, 3:13−cv−30146−MAP, 3:14−cv−30184−MAP(Kaplan, Jennifer) (Entered: 12/10/2014)
140 NOTICE by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins Lodging Report Per Court Order (Attachments: # 1 Exhibit A−Class Tracker Chart, # 2 Exhibit B−Summary)(Fabian, Sarah) (Entered: 01/16/2015)
141 MOTION for Clarification re 114 Order on Motion to Certify Class, Order on Motion to Dismiss for Failure to State a Claim,,,,,,, by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Lafaille, Adriana) (Entered: 01/16/2015)
142 MEMORANDUM in Support re 141 MOTION for Clarification re 114 Order on Motion to Certify Class, Order on Motion to Dismiss for Failure to State a Claim,,,,,,, filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Lafaille, Adriana) (Entered: 01/16/2015)

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01/19/2015 01/20/2015 01/20/2015 01/20/2015 01/26/2015
01/30/2015 02/06/2015 05/04/2015 09/10/2015 02/17/2016 05/26/2016 05/26/2016 05/26/2016

143 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. The time of the Status Conference is moved to 1/20/2015 at 3:30 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 01/19/2015)
144 OPINION of USCA dated October 6, 2014 as to 128 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. (Healy, Bethaney) (Entered: 01/20/2015)
145 USCA Judgment as to 128 Notice of Appeal dated October 6, 2014 filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson (Healy, Bethaney) (Entered: 01/20/2015)
148 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 1/20/2015. Colloquy re: status of case. Briefing schedule established by the court. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).)(Attorneys present: Lafaille, Stevens, Fabian) (Healy, Bethaney) (Entered: 02/02/2015)
146 ORDER of USCA as to 128 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson, 117 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Jeh Charles Johnson, Steven W. Tompkins, 121 Notice of Appeal, filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Thomas M. Hodgson, Jeh Charles Johnson, Steven W. Tompkins. (Paine, Matthew) (Entered: 01/26/2015)
147 Opposition re 141 MOTION for Clarification re 114 Order on Motion to Certify Class, Order on Motion to Dismiss for Failure to State a Claim,,,,,,, filed by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr. (Fabian, Sarah) (Entered: 01/30/2015)
149 REPLY to Response to 141 MOTION for Clarification re 114 Order on Motion to Certify Class, Order on Motion to Dismiss for Failure to State a Claim,,,,,,, filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Lafaille, Adriana) (Entered: 02/06/2015)
150 Motions Taken Under Advisement: 141 MOTION for Clarification re 114 Order on Motion to Certify Class, Order on Motion to Dismiss for Failure to State a Claim. (Healy, Bethaney) (Entered: 05/04/2015)
151 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 141 Motion for Clarification. DENIED, without prejudice to a motion for reconsideration after the court of Appeals issues its opinion en banc in this case and the related case of Castaneda v Souza. So ordered. (Lindsay, Maurice) (Entered: 09/10/2015)
152 MANDATE of USCA as to 63 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., Janet Napolitano, John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins. Appeal 63 Terminated (Paine, Matthew) (Entered: 02/18/2016)
153 USCA Judgment as to 117 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson (Paine, Matthew) (Entered: 05/27/2016)
154 MANDATE of USCA as to 117 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. Appeal 117 Terminated (Paine, Matthew) (Entered: 05/27/2016)
155 USCA Judgment as to 121 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson (Paine,

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05/26/2016 09/02/2016
09/02/2016 09/30/2016 11/21/2016 11/21/2016

Matthew) (Entered: 05/27/2016)
156 MANDATE of USCA as to 121 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. Appeal 121 Terminated (Paine, Matthew) (Entered: 05/27/2016)
157 Transcript of Motion Hearing held on March 18, 2014, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 9/23/2016. Redacted Transcript Deadline set for 10/3/2016. Release of Transcript Restriction set for 12/1/2016. (Scalfani, Deborah) (Entered: 09/02/2016)
158 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 09/02/2016)
159 Judge Michael A. Ponsor: ORDER entered. SCHEDULING ORDER: The parties are ordered to file a joint written report as to the current status of this case, no later than October 17, 2016. (Kaplan, Jennifer) (Entered: 09/30/2016)
160 OPINION of USCA as to 128 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. (Paine, Matthew) (Entered: 11/22/2016)
161 USCA Judgment as to 128 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson.

The district court's May 21, 2014 remedial grant of summary judgment, declaratory judgment, and injunctive relief is VACATED, and the matter is REMANDED for further proceedings consistent with the opinion issued this day. That part of this decision vacating the district court injunction is stayed for a period of 90 days to permit the district court to determine how to proceed on remand. No costs are awarded.

11/22/2016
12/09/2016 12/09/2016 12/15/2016

(Paine, Matthew) (Entered: 11/22/2016)
162 Judge Michael A. Ponsor: ORDER entered. As follows: For the reasons stated, On or before December 9, 2016, the parties will submit a joint memorandum, or individual memoranda, setting forth their proposals for proceedings on remand, and Counsel will appear before this court for a status conference on December 15, 2016 at 11:00 a.m. No substantive issues will be addressed at that time, but the court will be looking for detailed suggestions as to the best way to address the issues specified in the First Circuit's opinion. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 11/22/2016)
163 RESPONSE TO COURT ORDER by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu re 162 Scheduling Order,, Plaintiffs' proposal for proceedings on remand. (Lafaille, Adriana) (Entered: 12/09/2016)
164 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 162 Scheduling Order,, . (Fabian, Sarah) (Entered: 12/09/2016)
165 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 12/15/2016. Colloquy re: remand and proceedings. Court establishes a schedule, with a scheduling order to issue. (Court Reporter: Alice Moran atalice.moran@verizon.net.)(Attorneys present: Lafaille, Segal, Fabian) (Healy, Bethaney) (Entered: 12/15/2016)

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 23 of 29

12/15/2016
12/22/2016
12/22/2016 12/28/2016 12/30/2016 01/06/2017 01/06/2017 01/09/2017 01/09/2017 01/11/2017 01/12/2017 01/13/2017 01/17/2017

166 Judge Michael A. Ponsor: ORDER ENTERED. Defendants' written submission due by 12/30/2016; Parties' joint memoranda re: applicability of Section 1252(f)(1) due by 1/9/2017; Plaintiffs' response to Defendants' 12/30/2016 submission due by 1/9/2017; Parties' reply briefs with regard to applicability of Section 1252(f)(1) due by 1/17/2017; Defendants' response to Plaintiffs' 1/9/2017 submission due by 1/23/2017. Counsel will appear for argument on January 26, 2017 at 10:00 a.m. to address all of the issues raised by the previous submissions. See Order for additional details and filing instructions. (Healy, Bethaney) (Entered: 12/15/2016)
167 Transcript of Status Conference held on December 15, 2016, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 1/12/2017. Redacted Transcript Deadline set for 1/23/2017. Release of Transcript Restriction set for 3/22/2017. (Scalfani, Deborah) (Entered: 12/22/2016)
168 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/22/2016)
169 NOTICE of Withdrawal of Appearance by Elizabeth J. Stevens (Stevens, Elizabeth) (Entered: 12/28/2016)
170 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 166 Order,, . (Attachments: # 1 Exhibit Declaration)(Fabian, Sarah) (Entered: 12/30/2016)
171 Set/Reset Hearings:, Set Deadlines/Hearings: Hearing set for 1/26/2017 at 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 01/06/2017)
172 Joint MOTION to Modify Dec. 15, 2016 scheduling order, and status report by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Lafaille, Adriana) (Entered: 01/06/2017)
173 RESPONSE TO COURT ORDER by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu re 166 Order,, Memorandum on 8 U.S.C. 1252(f)(1). (Lafaille, Adriana) (Entered: 01/09/2017)
174 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 166 Order,, Supplemental Brief Re 1252(f)(1). (Fabian, Sarah) (Entered: 01/09/2017)
175 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 166 Order,, . (Attachments: # 1 Exhibit Declaration)(Fabian, Sarah) (Entered: 01/11/2017)
176 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 172 Motion for Modification of Deadlines, The schedule is hereby mofified as requested and so ordered. See document for further details. (Finn, Mary) (Entered: 01/12/2017)
177 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 166 Order,, Supplemental Response. (Attachments: # 1 Exhibit)(Fabian, Sarah) (Entered: 01/13/2017)
178 Response by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu to 177 Response to Court Order, 170 Response to Court Order, 175 Response to Court Order, . (Lafaille, Adriana) (Entered: 01/17/2017)

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 24 of 29

01/17/2017 01/18/2017 01/18/2017 01/19/2017
01/23/2017 01/24/2017 01/25/2017 01/26/2017
01/26/2017
01/26/2017 02/08/2017 02/10/2017 02/10/2017 02/27/2017

179 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 166 Order,, . (Fabian, Sarah) (Entered: 01/17/2017)
180 Assented to MOTION for Leave to File Corrected Brief by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Corrected Brief (Redline))(Lafaille, Adriana) (Entered: 01/18/2017)
181 Letter/request (non−motion) from Matthew R. Segal, Adriana Lafaille regarding error in 1252(f)(1) brief. (Segal, Matthew) (Entered: 01/18/2017)
183 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 180 Motion for Leave to File Corrected Brief; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 01/24/2017)
182 RESPONSE TO COURT ORDER by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins re 166 Order,, . (Fabian, Sarah) (Entered: 01/23/2017)
184 RESPONSE TO COURT ORDER by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu re 166 Order,, Corrected Memorandum on 8 U.S.C. 1252(f)(1). (Lafaille, Adriana) (Entered: 01/24/2017)
185 NOTICE Resetting Hearing ISSUED. The time for the January 26, 2017 Hearing is moved to 9:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 01/25/2017)
186 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: For the reasons stated, Counsel for Plaintiffs will serve interrogatories and requests for production on Defendants no later than February 27, 2017 and this case is set for a status conference on April 11, 2017, at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. It is expected that paper discovery, at a minimum, will be completed by that date. At the conference, the court willadopt a compact schedule for completion of all proceedings on remand. It is So Ordered. See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 01/26/2017)
187 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Hearing held on 1/26/2017. Colloquy re: counsels' submissions. Order to issue. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).)(Attorneys present: Lafaille, Segal, Fabian) (Healy, Bethaney) (Entered: 01/27/2017)
188 AFFIDAVIT of Christopher N. Cronen by Jeh Charles Johnson. (Healy, Bethaney) (Entered: 01/27/2017)
189 Assented to MOTION for Order to set Interim Relief by Preciosa Antunes, Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Segal, Matthew) (Entered: 02/08/2017)
190 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 189 Assented to Motion for Interim Relief. ALLOWED, with the agreement of all the parties. (Lindsay, Maurice) (Entered: 02/10/2017)
191 Judge Michael A. Ponsor: ORDER entered on 190 Motion for Interim Relief. (Healy, Bethaney) (Entered: 02/17/2017)
192 NOTICE of Appearance by Anant K. Saraswat on behalf of Cesar Chavarria Restrepo (Saraswat, Anant) (Entered: 02/27/2017)

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 25 of 29

03/01/2017 04/11/2017 04/13/2017
04/25/2017 05/01/2017
05/01/2017 05/05/2017 05/05/2017 05/09/2017 05/09/2017 10/02/2017 10/11/2017 10/12/2017

193 MANDATE of USCA as to 128 Notice of Appeal filed by Michael G. Bellotti, Eric H. Holder, Jr., Joseph D. McDonald, Jr., John Sandweg, Sean Gallagher, Thomas M. Hodgson, Christopher J. Donelan, Steven W. Tompkins, Jeh Charles Johnson. Appeal 128 Terminated (Paine, Matthew) (Entered: 03/02/2017)
196 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 4/11/2017. Colloquy re: status of case. Status Conference set for 10/24/17 at 2:00 p.m. Scheduling Order to issue. (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Healy, Bethaney) (Entered: 04/28/2017)
194 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: Counsel will have until 10/11/17, to complete the discovery, Counsel will appear again for a status conference at 2:00 p.m. on 10/24/17 in Hampden Courtroom before Judge Michael A. Ponsor. and On or before April 25, 2017, Defendants will file a motion for clarification with regard to possible conflicts (if any) between orders issued by this court and Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 04/13/2017)
195 NOTICE by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins (Fabian, Sarah) (Entered: 04/25/2017)
197 Transcript of Status Conference held on April 11, 2017, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 5/22/2017. Redacted Transcript Deadline set for 6/1/2017. Release of Transcript Restriction set for 7/31/2017. (Scalfani, Deborah) (Entered: 05/01/2017)
198 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/01/2017)
199 NOTICE of Appearance by Samuel P. Go on behalf of Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins (Go, Samuel) (Entered: 05/05/2017)
200 Joint MOTION for Protective Order by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Attachments: # 1 [Proposed] Amended Protective Order)(Go, Samuel) (Entered: 05/05/2017)
201 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 200 Motion for Protective Order. ALLOWED. See order. (Lindsay, Maurice) (Entered: 05/09/2017)
202 Judge Michael A. Ponsor: ORDER entered. AMENDED PROTECTIVE ORDER (Lindsay, Maurice) (Entered: 05/09/2017)
203 Joint MOTION for Protective Order (Supplemental) by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Attachments: # 1 Text of Proposed Order)(Go, Samuel) (Entered: 10/02/2017)
204 Joint MOTION for Extension of Time to December 11, 2017 to Complete Discovery and for rescheduling of October 24, 2017 status conference by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Lafaille, Adriana) (Entered: 10/11/2017)
205 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 204 Motion for Extension of Time to Complete Discovery. Discovery described in the court's Scheduling Order of January 26, 2017 shall be completed by 12/11/2017. The October 24, 2017 Status Conference is continued to January 10, 2018, at 2:00 p.m.

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 26 of 29

10/12/2017 10/12/2017 10/17/2017 12/11/2017 12/11/2017
12/13/2017 01/03/2018
01/04/2018 01/04/2018 01/19/2018

in the Hampden Courtroom. (Healy, Bethaney) (Entered: 10/13/2017)
206 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 203 Motion for Entry of Supplemental Protective Order. Allowed. See order. (Healy, Bethaney) (Entered: 10/13/2017)
207 Judge Michael A. Ponsor: SUPPLEMENTAL PROTECTIVE ORDER ENTERED. (Healy, Bethaney) (Entered: 10/13/2017)
208 Set/Reset Hearings: Status Conference set for 1/10/2018 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 10/17/2017)
209 MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6), MOTION to Modify Scheduling Order ( Responses due by 12/26/2017) by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Saraswat, Anant) (Entered: 12/11/2017)
210 MEMORANDUM in Support re 209 MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6) MOTION to Modify Scheduling Order filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Declaration of Anant Saraswat, # 2 Exhibit A to Saraswat Declaration, # 3 Exhibit B to Saraswat Declaration, # 4 Exhibit C to Saraswat Declaration, # 5 Exhibit D to Saraswat Declaration, # 6 Exhibit E to Saraswat Declaration, # 7 Exhibit F to Saraswat Declaration, # 8 Exhibit G to Saraswat Declaration, # 9 Exhibit H to Saraswat Declaration, # 10 Exhibit I to Saraswat Declaration, # 11 Exhibit J to Saraswat Declaration, # 12 Exhibit K to Saraswat Declaration, # 13 Exhibit L to Saraswat Declaration, # 14 Exhibit M to Saraswat Declaration, # 15 Exhibit N to Saraswat Declaration, # 16 Exhibit O to Saraswat Declaration, # 17 Exhibit P to Saraswat Declaration, # 18 Exhibit Q to Saraswat Declaration, # 19 Exhibit R to Saraswat Declaration, # 20 Exhibit S to Saraswat Declaration, # 21 Exhibit T to Saraswat Declaration)(Saraswat, Anant) (Entered: 12/11/2017)
211 Assented to MOTION for Extension of Time to January 9, 2018 to File Opposition to Plaintiffs' Motion to Compel by Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins.(Fabian, Sarah) (Entered: 12/13/2017)
212 Assented to MOTION for Extension of Time to January 19, 2018 to File Response/Reply as to 209 MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6) MOTION to Modify Scheduling Order , 210 Memorandum in Support of Motion,,,,, by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins.(Fabian, Sarah) (Entered: 01/03/2018)
213 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 212 Motion for Extension of Time to File Response to Plaintiffs 209 MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6) and to Modify Scheduling Order. ALLOWED. The Motion Hearing and Status Conference is continued to January 30, 2018, at 11:00 a.m. Defendants responses are due by 1/19/2018. (Healy, Bethaney) (Entered: 01/04/2018)
214 Set/Reset Deadlines as to 209 MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6) and to Modify Scheduling Order.(Motion Hearing/Status Conference set for 1/30/2018 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.) (Healy, Bethaney) (Entered: 01/04/2018)
215 Opposition re 209 MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6) MOTION to Modify Scheduling Order filed by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Attachments: # 1 Fabian Declaration, # 2 Attachment A, # 3 Attachment B)(Fabian, Sarah) (Entered:

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01/24/2018 01/25/2018 02/09/2018 02/14/2018
02/28/2018 03/22/2018 04/05/2018 04/05/2018 04/12/2018 04/18/2018 04/18/2018
04/26/2018

01/19/2018)
216 Assented to MOTION to Continue Status Conference to February 13, 2018 by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu.(Saraswat, Anant) (Entered: 01/24/2018)
217 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Plaintiffs' Motion to Continue Status Conference is hereby ALLOWED. The status conference is rescheduled for 2/13/2018 at 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Kaplan, Jennifer) (Entered: 01/25/2018)
218 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Defendants' Motion for Extension of Time (Dkt. No. 211) is hereby found as moot, in light of the subsequent motion for extension of time (Dkt. No. 212), allowed by the court on January 4, 2018 (see Dkt. No. 213). (Kaplan, Jennifer) (Entered: 02/09/2018)
219 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 2/13/2018 regarding Plaintiffs' MOTION to Compel Production of Certain Documents and Provide Additional Witnesses for Deposition Under Fed. R. Civ. P. 30(b)(6) and MOTION to Modify Scheduling Order (Dkt. No. 209). Motion taken under advisement. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).) (Attorneys present: Saraswat, Lafaille, Fabian) (Kaplan, Jennifer) (Entered: 02/14/2018)
220 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, the motion to compel is hereby ALLOWED, in part as to Topic 15, as set forth in this order, and as to request for production No. 4, which the parties will address through informal discussions. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 02/28/2018)
221 MOTION to Stay Proceedings Pending Supreme Court Decision in Nielsen v. Preap by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins.(Fabian, Sarah) (Entered: 03/22/2018)
222 MEMORANDUM in Opposition re 221 MOTION to Stay Proceedings Pending Supreme Court Decision in Nielsen v. Preap filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Saraswat, Anant) (Entered: 04/05/2018)
223 AFFIDAVIT in Opposition re 221 MOTION to Stay Proceedings Pending Supreme Court Decision in Nielsen v. Preap filed by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Saraswat, Anant) (Entered: 04/05/2018)
224 Joint MOTION for Extension of Time to May 14, 2018 to to complete the deposition on Topic 15 by Preciosa Antunes, Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Saraswat, Anant) (Entered: 04/12/2018)
225 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Joint Motion for Extension of Time (Dkt. No. 224) is hereby ALLOWED. (Kaplan, Jennifer) (Entered: 04/18/2018)
226 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Defendants' Motion to Stay (Dkt. No. 221) is ALLOWED, in part. The parties will complete discovery in accordance with the court's ruling of February 28, 2018 (Dkt. No. 220). The court declines to find that Defendants have abandoned any factual arguments capable of supporting the representations previously made to the First Circuit, as Plaintiff requests. The basis, or lack of any basis, for these arguments remains undetermined. The proceedings are otherwise stayed, pending the Supreme Court's decision in Nielson v. Preap, 16−1363. It is So Ordered. (Kaplan, Jennifer) (Entered: 04/18/2018)
227 MOTION for Leave to Appear Pro Hac Vice for admission of David Hausman Filing fee: $ 100, receipt number 0101−7111834 by Preciosa Antunes, Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Declaration)(Lafaille, Adriana) (Entered:

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 28 of 29

05/02/2018
05/10/2018 05/16/2018 05/16/2018 07/10/2018 07/17/2018 04/25/2019

04/26/2018)
228 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 227 Motion for Leave to Appear Pro Hac Vice; ALLOWED. Added David Kautsky Hausman, Esq.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 05/02/2018)
229 Joint MOTION for Extension of Time to May 15, 2018 to complete the 30(b)(6) deposition on Topic 15 by Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu. (Attachments: # 1 Text of Proposed Order)(Saraswat, Anant) (Entered: 05/10/2018)
230 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Joint Motion for Extension of Time to Complete Deposition (Dkt. No. 229) is ALLOWED. See order. (Kaplan, Jennifer) (Entered: 05/16/2018)
231 Judge Michael A. Ponsor: ORDER entered. See attached order, extending deadline to complete deposition on Topic 15. (Kaplan, Jennifer) (Entered: 05/16/2018)
232 Judge Michael A. Ponsor: ELECTRONIC ORDER REASSIGNING CASE. Pursuant to LR 40.1(I)(1), this matter is reassigned to Chief Judge Patti B. Saris for all further proceedings. Judge Michael A. Ponsor no longer assigned to case. (Healy, Bethaney) (Entered: 07/10/2018)
233 Chief Judge Patti B. Saris: ORDER OF STAY entered. (Coppola, Katelyn) (Entered: 07/17/2018)
234 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered.

Given the Supreme Court's recent decision in Nielsen v. Preap, 139 S. Ct. 954 (2019), it is hereby ordered that counsel shall file a joint status report by May 13, 2019.

04/25/2019 05/13/2019 05/15/2019 05/20/2019 05/22/2019 05/22/2019
06/26/2019

(Lara, Miguel) (Entered: 04/25/2019)
235 Set deadline as to Joint Status Report due by 5/13/2019. (Lara, Miguel) (Entered: 04/25/2019)
236 STATUS REPORT Joint Report by Rand Beers, Michael G. Bellotti, Christopher J. Donelan, Sean Gallagher, Thomas M. Hodgson, Eric H. Holder, Jr., Jeh Charles Johnson, Joseph D. McDonald, Jr, John Sandweg, Steven W. Tompkins. (Fabian, Sarah) (Entered: 05/13/2019)
237 ELECTRONIC NOTICE of Hearing.... Status Conference set for 5/22/2019 11:00 AM in Courtroom 19 before Chief Judge Patti B. Saris. (Molloy, Maryellen) (Entered: 05/15/2019)
238 NOTICE Resetting a Hearing. ***TIME CHANGE ONLY*** Status Conference reset for 5/22/2019 11:15 AM in Courtroom 19 before Chief Judge Patti B. Saris. (Lara, Miguel) (Entered: 05/20/2019)
239 NOTICE of Appearance by Michelle K. Nyein on behalf of Cesar Chavarria Restrepo, Gustavo Ribeiro Ferreira, Clayton Richard Gordon, Valbourn Sahidd Lawes, Nhan Phung Vu (Nyein, Michelle) (Entered: 05/22/2019)
240 Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Status Conference held on 5/22/2019....If counsel decides to file a New Civil Action, counsel will file the complaint on or before June 24, 2019. The Court will dismiss this matter without prejudice within 30 days (6/24/19). (Court Reporter: Lee Marzilli at leemarz@aol.com.) (Molloy, Maryellen) (Entered: 05/22/2019)
241 Chief Judge Patti B. Saris: ORDER entered.

As stated in court at the status conference on May 22, 2019, it is ORDERED that this action be dismissed without prejudice to the filing of a new civil action challenging on constitutional grounds the application of mandatory detention pursuant to 8 U.S.C. §

Case: 3:13-cv-30146-PBS As of: 04/11/2020 06:00 PM EDT 29 of 29

1226(c) to noncitizens who are not taken into immigration custody immediately upon release from criminal custody.

07/01/2019 07/01/2019

(Lara, Miguel) (Entered: 06/26/2019)
242 Transcript of Status Conference held on May 22, 2019, before Chief Judge Patti B. Saris. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Lee Marzilli at leemarz@aol.com Redaction Request due 7/22/2019. Redacted Transcript Deadline set for 8/1/2019. Release of Transcript Restriction set for 9/30/2019. (Scalfani, Deborah) (Entered: 07/01/2019)
243 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/01/2019)

 
 Case: 13-1994 Document: 00116748412 Page: 1 Date Filed: 10/06/2014 Entry ID: 5858025
United States Court of Appeals
For the First Circuit
No. 13-1994
LEITICIA CASTAÑEDA,
Petitioner, Appellee,
v.
STEVE SOUZA, Superintendent, Bristol County House of Corrections, in his official capacity and his successors and assigns,
Respondent, Appellant,
BRUCE E. CHADBOURNE, Field Office Director, Boston Field Office, Office of Detention and Removal, U.S. Immigrations and Customs Enforcement, U.S. Department of Homeland Security, in his
official capacity and his successors and assigns; JOHN T. MORTON, Director, U.S. Immigration and Customs Enforcement, U.S.
Department of Homeland Security, in his official capacity and his successors and assigns; JEH JOHNSON, Secretary, U.S. Department
of Homeland Security, in his official capacity and his successors and assigns; ERIC H. HOLDER, JR., Attorney General, U.S. Department of Justice, in his official capacity and his successors and assigns,
Respondents.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
No. 13-2509
CLAYTON RICHARD GORDON, on behalf of himself and others similarly situated,
Petitioner, Appellee,
PRECIOSA ANTUNES; GUSTAVO RIBEIRO FERREIRA; VALBOURN SAHIDD LAWES; NHAN PHUNG VU,
Petitioners,

Case: 13-1994 Document: 00116748412 Page: 2 Date Filed: 10/06/2014 Entry ID: 5858025
v.
ERIC H. HOLDER, JR., United States Attorney General; JOHN SANDWEG, Acting Director; SEAN GALLAGHER, Acting Field Office Director; CHRISTOPHER J. DONELAN; MICHAEL G. BELOTTI, Sheriff; STEVEN W. TOMPKINS, Sheriff; THOMAS M. HODGSON, Sheriff; JOSEPH
D. MCDONALD, JR., Sheriff; RAND BEERS, Acting Secretary of Homeland Security,
Respondents, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before Torruella, Dyk,* and Thompson,
Circuit Judges.
Elianis N. Pérez, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, with whom Sarah B. Fabian, Trial Attorney, District Court Section, Stuart F. Delery, Assistant Attorney General, Civil Division, Colin A. Kisor, Director, Office of Immigration Litigation, and Elizabeth J. Stevens, Assistant Director, were on brief, for respondents-appellants Steve Souza, Eric H. Holder, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Michael G. Bellotti, Steven W. Tompkins, Thomas M. Hodgson, Joseph D. McDonald, Jr., and Jeh C. Johnson.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky Law Offices were on brief, for appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil Liberties Union of Massachusetts, Judy Rabinovitz, Eunice Lee, Michael Tan, ACLU Foundation Immigrants’ Rights Project, Elizabeth Badger, and Lutheran Social Services were on brief, for appellee Gordon.
Alina Das, Sean McMahon, Legal Intern, Etan Newman, Legal Intern, and Washington Square Legal Services, Inc., Immigrant Rights Clinic, on brief for Detention Watch Network, Families for Freedom, Greater Boston Legal Services, Harvard Immigration and Refugee Clinical Program, Immigrant Defense Project, Immigrant Rights Clinic, Maine People’s Alliance, National Immigrant Justice
*Of the Federal Circuit, sitting by designation. -2-

Case: 13-1994 Document: 00116748412 Page: 3 Date Filed: 10/06/2014 Entry ID: 5858025
Center, Political Asylum/Immigration Representation (PAIR) Project, University of Maine School of Law Immigrant and Refugee Rights Clinic, as amici curiae in support of petitioners-appellees Castañeda & Gordon.
Prasant D. Desai and Iandoli & Desai, P.C., on brief for American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts, American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild, as amici curiae in support of petitioner-appellee Castañeda.
October 6, 2014

Case: 13-1994 Document: 00116748412 Page: 4 Date Filed: 10/06/2014 Entry ID: 5858025

DYK, Circuit Judge. In these consolidated habeas cases, we must determine whether the petitioners, two aliens, are subject to the mandatory detention provision of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). Subsection 1226(c) provides that the Attorney General “shall take into custody any alien,” who has committed certain predicate crimes, “when the alien is released.” Unlike other aliens facing the possibility of removal from the United States, aliens subject to mandatory detention are generally ineligible for bail even if they show to the Attorney General’s satisfaction that they are not dangerous and are likely to appear at removal hearings.
Each of the petitioners here committed a predicate crime listed in § 1226(c)1 but was not taken into custody by the Attorney General until years after being released from state custody. Because § 1226(c) only applies to aliens detained “when . . . released” from criminal custody, and because the petitioners were not timely detained under any reasonable interpretation of the statute, we conclude that the petitioners are not subject to mandatory detention under § 1226(c) and are entitled to an individualized bail hearing under § 1226(a). We therefore affirm the district court’s grant of habeas corpus relief in each case.

1

Predicate crimes under § 1226(c) cover a variety of

offenses. Of note in this case, non-violent drug possession is a

predicate act. See 8 U.S.C. §§ 1226(c)(1)(B), 1227(A)(2)(B)(i).

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I. A. The mandatory detention provision of section 1226, subsection (c), is part of a section of the Immigration and Nationality Act which governs the arrest and detention of aliens subject to removal from the United States. See generally 8 U.S.C. § 1226. The general rule under that section is that aliens arrested and charged with removal may be released on bond pending removal proceedings: (a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) [the mandatory detention provision] of this section and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 . . . ; or (B) conditional parole . . . . Id. § 1226(a) (emphasis added). The statute thus provides that after an alien’s arrest the Attorney General “may continue to detain the arrested alien” or “may release the alien” on bond or parole. Id. § 1226(a)(1), (2).2 We refer to this provision,
2 Although the Attorney General now shares these responsibilities with the Secretary of Homeland Security (see Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 402, 441,
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Case: 13-1994 Document: 00116748412 Page: 6 Date Filed: 10/06/2014 Entry ID: 5858025
subsection (a), as the general detention provision. The general detention provision does not require the Attorney General to release an alien under any particular circumstances, nor does it limit the factors that the Attorney General may consider in deciding whether to detain or release an alien. See id.
The process by which the Attorney General determines whether an alien will be released on bond pursuant to subsection (a) is governed by administrative regulations. See generally 8 C.F.R. § 1236.1. The first step in the process is a bond determination by an immigration enforcement officer. See id. § 1236.1(c)(8). To be released, an alien must prove “to the satisfaction of the officer” that his release would not endanger other persons or property and that he is likely to appear for any future proceedings. Id. Release may be revoked (if it is granted at all) “at any time in the discretion of” the immigration enforcement officer. Id. § 1236.1(c)(9).
An alien dissatisfied with his initial bond determination may request a redetermination of bond by an administrative immigration judge. Id. § 1236.1(d)(1). The immigration judge applies the same standard as the enforcement officials and reaches an independent judgment about the alien’s eligibility for release. See id. If the alien is still dissatisfied with his bond decision,
116 Stat. 2135 (Nov. 25, 2002)), for convenience, we will refer to this authority as residing in the Attorney General and his assigns.
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he may take a further appeal to the Board of Immigration Appeals
(BIA). Id. § 1236.1(d)(3).
No judicial review is available for an alien’s bond
determination. The statute provides:
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. 8 U.S.C. § 1226(e). Thus, the exclusive authority to make and
review bond determinations lies with the executive branch, whose
discretionary decisions are generally immune from review in Article
III courts.
B.
The mandatory detention provision, § 1226(c), is framed
as an exception to § 1226(a)’s general detention provision. See
id. § 1226(a) (“Except as provided in subsection (c) . . . .”).
Under this exception, aliens who have committed one or more
predicate crimes are to be detained by the Attorney General
“when . . . released” from criminal custody, and may not be released on bond except in rare circumstances not present here.3

3

An alien may be released if the Attorney General

concludes that his release is necessary for witness protection

purposes related to a major criminal prosecution or investigation.

8 U.S.C. § 1226(c)(2). The alien must also demonstrate that he is

not dangerous or a flight risk, as he would under general

detention. Id.

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The sole procedural safeguard for such aliens is a “Joseph” hearing at which the alien “may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS [now ICE] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention.” Demore v. Kim, 538 U.S. 510, 514 n.3 (2003); see also 8 C.F.R. § 3.19(h)(2)(ii); In re Joseph, 22 I. & N. Dec. 799 (BIA 1999).
The predicate crimes for mandatory detention include aggravated felonies, crimes of moral turpitude, human trafficking, certain firearm offenses, treason, espionage, terrorism, and various others. See id. § 1226(c)(1)(A)-(D). Of relevance here, they also include violations of state, federal, or foreign laws relating to controlled substances, from drug trafficking to simple possession. See id. §§ 1226(c)(1)(A), 1182(a)(2). As this court held in Saysana v. Gillen, 590 F.3d 7, 15-17 (1st Cir. 2009), mandatory detention is limited to situations in which the alien is released from custody related to one of the predicate crimes.
The relevant text of subsection (c) reads as follows: (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,
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Case: 13-1994 Document: 00116748412 Page: 9 Date Filed: 10/06/2014 Entry ID: 5858025
(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 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 [18 U.S.C. § 3521] that release of the alien from custody is necessary [for witness protection in a major criminal case], and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
8 U.S.C. § 1226(c) (emphasis added). Thus, the effect of § 1226(c)
is to deny individualized bond hearings during which the Attorney
General has the discretion to determine whether to detain the
individual. The central issue in this case relates to the phrase
“when the alien is released.”
C.
In Demore v. Kim, 538 U.S. 510, the Supreme Court held
that § 1226(c)’s mandatory detention scheme is not facially
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Case: 13-1994 Document: 00116748412 Page: 10 Date Filed: 10/06/2014 Entry ID: 5858025
unconstitutional. The alien in Demore had been detained the day after his release from state custody. Kim v. Ziglar, 276 F.3d 523, 526 (9th Cir. 2002). He argued that § 1226(c) violates due process because it allows the Attorney General to detain an alien indefinitely without a finding that the alien is dangerous or a flight risk. Demore, 538 U.S. at 514. The Supreme Court rejected that argument, concluding that aliens falling under § 1226(c) may constitutionally be detained “for the brief period necessary for their removal proceedings.” Id. at 513. The Court distinguished an earlier case, Zadvydas v. Davis, 533 U.S. 678 (2001), which held that aliens whose deportation is unfeasible (e.g., because no country will accept them) cannot be held indefinitely unless the government demonstrates a continued need for their detention. Demore, 538 U.S. at 528. “While the period of detention at issue in Zadvydas [after the statutory deadline for an alien’s removal has passed] was ‘indefinite’ and ‘potentially permanent,’ the detention [under § 1226(c)] is of a much shorter duration.” Id. (citation omitted). Statistics cited by the Court showed that most removal cases were completed in a few months and the remainder, on average, were completed in just four months more. Id. at 529.
While the Court’s opinion in Demore did not articulate limits on the permissibility of mandatory detention, Justice Kennedy in joining the majority opinion made clear that in his view § 1226(c) should be construed in light of constitutional concerns
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Case: 13-1994 Document: 00116748412 Page: 11 Date Filed: 10/06/2014 Entry ID: 5858025

if an alien’s detention became unreasonable or unjustified. Demore, 538 U.S. at 532 (Kennedy, J., concurring). Since Justice Kennedy’s vote was necessary to the majority, his limiting rationale is binding on us.4
Justice Kennedy began his concurrence by noting that, since mandatory detention under § 1226(c) is “premised upon the alien’s deportability,” due process requires “individualized procedures” such as a Joseph hearing to ensure that the alien is in fact deportable. Id. At 531-32 (Kennedy, J., concurring). “For similar reasons,” he continued, “since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532. “Were there to be an unreasonable delay by [ICE] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or

4

See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633

F.2d 583, 594-95 (1st Cir. 1980) (construing the Supreme Court’s 5-

4 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), to be

limited by the concurring opinion of Justice Powell); accord, e.g.,

United States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998); see

also United States v. District of Columbia, 654 F.2d 802, 806-07

(D.C. Cir. 1981) (giving similar treatment to National League of

Cities v. Usery, 426 U.S. 833 (1976), in light of Justice

Blackmun’s necessary concurrence).

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dangerousness, but to incarcerate for other reasons.” Id. at 53233 (emphasis added).
Justice Kennedy’s concurrence thus suggests that an “unreasonable delay by [ICE] in pursuing . . . deportation proceedings” could make mandatory detention under subsection (c) constitutionally suspect and requires a limiting construction. We must determine here whether the government’s years-long delay means that the petitioners are entitled to an individualized bond hearing under § 1226(a), or if they are subject to mandatory detention under § 1226(c).
II. A. Leiticia Castaneda is a native and citizen of Brazil. Castaneda entered the United States without inspection (illegally, that is) in 2000. Castaneda was seventeen years old at the time. In 2008, Castaneda was arrested for possession of cocaine, a misdemeanor under Massachusetts law and listed predicate for mandatory detention under § 1226(c). See Mass. Gen. Laws Ch. 94C, § 34; 8 U.S.C. §§ 1226(c)(1)(A), 1182(a)(2)(A)(i)(II) (listing as a predicate for mandatory detention “a[ny] violation of . . . any law or regulation . . . relating to a controlled substance . . . .”). It is unclear whether Castaneda remained in police custody or pretrial detention after her arrest. On October 6, 2008, Castaneda was convicted and released on probation, from
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which she was discharged in February 2010. Since her release, according to the Detention Watch Network Amici Br. at 16-18, Castaneda has begun living with her son, has been working as a night cleaner, has cooperated with police in an effort to prosecute a man who had abused her, and has applied for a U Visa (a type of visa set aside for victims of certain crimes).
In March 2013, four and a half years after her conviction and release in 2008, Castaneda was arrested, detained, and charged with removal by ICE agents.5 The stated ground for removal was Castaneda’s inadmissibility due to her cocaine possession conviction. Castaneda appears not to have disputed her criminal status or removability. She did, however, seek release on bond for the duration of her removal proceedings under § 1226(a). An immigration judge denied her request for release, finding that she was subject to mandatory detention under § 1226(c).
Castaneda then filed a petition for writ of habeas corpus in the District of Massachusetts. The petition alleged that Castaneda’s detention without opportunity for release on bond was unauthorized by law because she was not detained “when . . . released” from criminal custody as required by

5

The statute provides that Castaneda’s period of probation

is not to be considered in determining her date of release.

§ 1226(c)(1) (“. . . when the alien is released, without regard to

whether the alien is released on parole, supervised release, or

probation . . . .”).

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Case: 13-1994 Document: 00116748412 Page: 14 Date Filed: 10/06/2014 Entry ID: 5858025
§ 1226(c). The petition requested that the district court order an individualized bond hearing and bond redetermination before an immigration judge.
After a hearing, the district court granted Castaneda’s petition and issued a writ of habeas corpus ordering the government to release Castaneda unless it provided her a bond hearing within ten days. The court reasoned that the most natural reading of “when released” was “immediately upon release,” and therefore, in light of the statutory context, statutory structure, the rule of lenity, and the absence of congressional intent to the contrary, section 1226(c) applies only to criminal aliens who have been detained immediately upon release from criminal custody or within a reasonable time thereafter. A few days later, prior to the scheduled hearing, the government released Castaneda on her own recognizance.
B. Clayton Gordon is a native and citizen of Jamaica. Gordon arrived in the United States as a lawful permanent resident in 1982, at the age of six. Between 1994 and 1999, Gordon served in the National Guard and on active duty with the U.S. Army. He received an honorable discharge in 1999. Gordon was arrested in 2008 after police found cocaine in his home. He was released from custody later that day. He subsequently pled guilty to possession of narcotics with intent to
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sell, a violation of Connecticut law. See Conn. Gen. Stat. § 21a277(a). On September 30, 2009, Gordon was sentenced to seven years imprisonment, execution suspended, with a three-year probationary term. He completed his probation in October 2012. Since 2008, he has developed significant ties to the community--in 2008, he met the woman who has since become his fiance; they have a child together, born in 2010; they own a home in Bloomfield, Connecticut; he has developed a successful business; and he has worked on a project to open a halfway house for women released from incarceration.
Gordon was arrested and detained by ICE on June 20, 2013, more than four years after his release from state custody. The stated basis for removal was 8 U.S.C. § 1227(a)(2)(A)(iii), which states than an alien shall be deportable if he is convicted of any aggravated felony after being admitted to the United States. Gordon challenged his deportability, but was denied relief after an immigration judge agreed that Gordon’s cocaine conviction was an aggravated felony under § 1227(a)(2)(A)(iii). Thereafter, Gordon was held pursuant to the mandatory detention provision without opportunity for a bond hearing to establish whether he may be released during the removal proceedings.
On August 8, 2013, Gordon filed a petition for writ of habeas corpus in the District of Massachusetts. The petition argued that he was not subject to the mandatory detention provision
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Case: 13-1994 Document: 00116748412 Page: 16 Date Filed: 10/06/2014 Entry ID: 5858025
because he was not taken into immigration custody “when . . . released” from state criminal custody. Gordon sought an individualized bond hearing at which he could establish his entitlement to release on bond.
After a hearing, the district court granted Gordon’s petition for writ of habeas corpus, instructing the government to provide Gordon with a bond hearing. The court held that “when released” should be interpreted to mean “at the time of release,” plus a reasonable time thereafter. The court rejected the idea that a five year gap was reasonable and rejected the government’s argument that “when released” indicated the time at which it can begin to act as “flatly implausible.” Gordon was given a bond hearing and was released on bond of $25,000 on November 18, 2013.6
C. The government appeals, and we have jurisdiction under 28 U.S.C. § 1291. We note that subsection 1226(e) prohibits judicial review of “[t]he Attorney General’s discretionary judgment regarding the application of [§ 1226],” including “any action or decision . . . regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C.

6

Gordon’s petition also sought class-wide relief for all

similarly situated individuals, but that claim is not before us.

The decision on appeal is the district court’s grant of Gordon’s

individual petition. The class-wide claims remain pending before

the district court.

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Case: 13-1994 Document: 00116748412 Page: 17 Date Filed: 10/06/2014 Entry ID: 5858025
§ 1226(e). But subsection (e) does not bar our review of this case because Castaneda and Gordon do not challenge any “discretionary judgment” of the Attorney General; rather, they challenge the statutory basis for their detention. Habeas petitions bringing legal or constitutional challenges to an alien’s detention under § 1226 are not subject to subsection (e)’s prohibition of judicial review. Sylvain v. Attorney General, 714 F.3d 150, 155 n.4 (3d Cir. 2013); Singh v. Holder, 638 F.3d 1196, 1200-01 (9th Cir. 2011); Al-Siddiqi v. Achim, 531 F.3d 490, 494 (7th Cir. 2008); Demore, 538 U.S. at 517.
III. In these appeals the government asks for reversal of the grant of habeas corpus to Castaneda and Gordon and a determination that they are subject to mandatory detention. In the government’s view, § 1226(c) subjects an alien to detention without bail at any time after release, including years later, and detention can continue years after release while the alien fights removal. We think the government’s view of § 1226(c) is incorrect, and that in Justice Kennedy’s phrase the government in these cases has “unreasonabl[y] delay[ed] . . . in pursuing . . . deportation proceedings.” Demore, 538 U.S. at 532.
A. We first address the meaning of the “when . . . released” clause in § 1226(c). The government admits that this language
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Case: 13-1994 Document: 00116748412 Page: 18 Date Filed: 10/06/2014 Entry ID: 5858025
could mean immediately after release, but contends that this language is ambiguous because it could also mean any time after, but not before, release. According to the government,‘when released’ can plausible be read to “signif[y] that Congress did not want DHS to preempt state and federal law enforcement officials by trying to take criminal aliens into immigration custody before they [c]ompleted their term of non-DHS criminal custody. . . .” Gov’t Gordon Br. 24. The government argues that Chevron deference requires adopting this construction. The petitioners contend that it unambiguously means “immediately” and no later than 48 hours. We think neither interpretation is correct.
The government’s proposed interpretation--“at any time after release,” but not before release--is simply inconsistent with the plain meaning of the term “when” in this context. To be sure, the term “when” can be used in different ways. The Random House Dictionary of the English Language lists three potentially relevant senses: “at the time or in the event that,” “at any time that; whenever,” and “upon or after which; and then.” Random House Dictionary of the English Language 1626 (1981 ed.). See also Webster’s Third New International Dictionary 2602 (1993 ed.) (listing four: “at or during the time that,” “just after the moment that,” “at any and every time that,” and “in the event that”); American Heritage Dictionary 2032 (3d ed. 1992) (listing four: “at the time that,” “as soon as,” “whenever,” and “during the time
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Case: 13-1994 Document: 00116748412 Page: 19 Date Filed: 10/06/2014 Entry ID: 5858025
which; while”); 20 Oxford English Dictionary (“OED”) 209 (2d ed. 1989) (listing two principal senses: “[a]t the (or a) time at which; on the (or an) occasion on which”).
The government is correct in its assertion that one sense of “when” is similar in meaning to the word “after,” that is, not before. The government contends that it is in this conditional sense that the word “when” is used in this statute. The government relies on dictionary definitions and cases pertaining to the use of “when” in the conditional sense--meaning, roughly, “if” or “in the event that.” See Random House, supra, at 1626 (“at any time; whenever”); 20 OED, supra, at 209 (“[i]ndefinitely or generally: [a]t any time, or at the several times, at which; on any occasion that”); Webster’s Third, supra, at 2602 (“in the event that : on condition that”); American Heritage, supra, at 2032 (“[w]henever”); Random House, supra, at 1626 (“upon or after which”).
The Supreme Court’s decision in United States v. Willings demonstrates both that the word “when” is not used in § 1226(c) in the conditional sense and that, even if it were, the statute would require detention within a reasonable period of time after release. There, a federal maritime statute provided that “when any ship or vessel . . . registered pursuant to this act . . . shall in whole or in part be sold or transferred to a citizen, or citizens of the United States . . . , in every such case the said ship or vessel shall be registered anew.” 8 U.S. (4 Cranch) 48, 49 (1807)
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Case: 13-1994 Document: 00116748412 Page: 20 Date Filed: 10/06/2014 Entry ID: 5858025
(quoting Act of Dec. 31, 1792, § 14). In subsequent sentences, the statute used the phrase “in every such case” or “in every case” repeatedly. See id. Chief Justice Marshall explained that the correct understanding of the word “when” in that statute was “that it describes the occurrence which shall render [re-registration] necessary,” rather than “designat[ing] the precise time when [reregistration] must be performed.” Id. at 55-56.
In contrast to the statute at issue here, the statute in Willings repeatedly employed the phrase “in every such case,” strongly suggesting that “when” was intended in the conditional sense, rather than the temporal sense. We think it clear that § 1226(c) does not use the word “when” in the conditional sense, as if to distinguish between a case where the alien is released from state custody and a case where he is not. The detention and deportation of an alien under § 1226(c) is premised on the notion that the alien has been released from state custody; there is no need for § 1226(c) to specify it. There was no congressional concern in connection with subsection 1226(c) that the Attorney General might detain the alien before release from state custody. Indeed, Congress has already provided in 8 U.S.C. § 1231(a)(4)(A) that an alien typically could not be detained before release from state or federal custody.
Willings, moreover, makes clear that “when,” used in the conditional sense, means that the specified action must be taken
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Case: 13-1994 Document: 00116748412 Page: 21 Date Filed: 10/06/2014 Entry ID: 5858025
within a reasonable period of time after the triggering event or condition. Id. at 56 (rejecting that “when” means the “precise time,” and explaining that a ship must be allowed “a reasonable interval” of time after transfer or sale in which to register, “depend[ing] on the nature of the case”). There is no textual support for the government’s argument that “when . . . released” means “at any time after release.”
Nor do the structure, purpose, or legislative history of the statute suggest that Congress contemplated automatic detention’s being imposed years after an alien’s release from custody. The § 1226(c) cases on which the government relies for support merely describe Congress’s generalized intent to detain criminal aliens in order to protect the community and ensure swift deportation. See, e.g., Demore, 538 U.S. at 518-21; Sylvain, 714 F.3d at 159; Hosh v. Lucero, 680 F.3d 375, 381 (4th Cir. 2012). But this court explained in Saysana that such generalized statements of legislative intent “paint[] with far too broad a brush” to be given controlling weight in interpreting § 1226. 590 F.3d at 17. “The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply.” Id. at 17. So too here, we cannot adopt the government’s interpretation of the statute just because Congress
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had a general concern for detaining criminal aliens “when . . .
released” from custody.
When the government has delayed several years before
arresting an alien, the presumption of dangerousness and flight
risk is eroded by the years in which the alien lived peaceably in
the community. As this court explained in Saysana,
it is counter-intuitive to say that aliens with potentially longstanding community ties are, as a class, poor bail risks. The affected aliens are individuals who committed an offense, and were released from custody for that offense, more than a decade ago. They have continued to live in the United States. By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.
590 F.3d at 17.7
Finding no support in the statute’s text, structure,
purpose, or legislative history, we reject the government’s
argument that “when . . . released” could mean “at any time after
release,” but not before release.8

7

The government contends that “[u]pon initiation of

removal proceedings, however, the threat of removal becomes real,

and the likelihood that a criminal alien will flee to evade

proceedings only begins at that moment.” Gordon Reply Br. at 10.

This theory is speculative and exists with respect to all

detainees, not only to detainees who have been convicted of a

predicate offense. Congress made no decision to apply mandatory

detention to all detainees who become potential flight risks when

detained. Rather, Congress focused on the predicate offense.

8

The government relies on In re Rojas, 23 I. & N. Dec. 117

(BIA 2001) for this construction, claiming that “[t]he BIA []

recognized that ‘when’ could mean . . . at or after the specified

point in time.” Gov’t Gordon Br. 17. We do not read Rojas as

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This leads us to the petitioner’s interpretation. While we reject the “at any time after” interpretation, we also think that, contrary to the petitioners, “when . . . released” does not mean “immediately upon release, without interruption.” Nothing in subsection 1226(c) compels such a reading of the phrase. As the dictionaries show, the temporal sense of “when” typically connotes a degree of immediacy. See American Heritage, supra, at 2032 (defining “when” as “as soon as” and giving the following example: “I’ll call you when I get there.”); 20 OED, supra, at 209 (“[s]ometimes implying suddenness: = and just then, and at that moment”); Webster’s Third, supra, at 2602 (“just after the moment that”). This is confirmed by common usage. One would not say “stop writing when the bell rings” to mean “any time after the bell rings, even hours later.” See Webster’s Third, supra, at 2602 Thus, “when” in this context connotes temporal immediacy. See Random House, supra, at 1626; 20 OED, supra, at 209; Webster’s Third, supra, at 2602; American Heritage, supra, at 2032. But, what constitutes immediacy is be determined by context.
It seems quite unlikely that Congress intended § 1226(c) to require the strict immediacy advocated by the petitioners.
interpreting “when” to mean “any time after.” Accord Sylvain v. Attorney Gen., 714 F.3d 150, 157 n.9 (3d Cir. 2013) (“The Board [in Rojas] did not explicitly interpret the word ‘when.’ If anything, it suggested that ‘when’ denotes immediacy.”).
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Practically speaking, the government cannot always detain criminals at the precise moment of their release from state custody. For one thing, such immediate detention requires foreknowledge of an alien’s impending release from custody, for which the government must depend on the cooperation of state and local authorities. This cooperation is often less than perfect. Indeed, at least one state adjacent to this circuit recently passed legislation curtailing its cooperation with ICE in detaining aliens convicted of crimes. See An Act Concerning Civil Immigration Detainers, Pub. Act No. 13-155, § 1 (Conn. 2013) (codified at Conn. Gen. Stat. § 54-192h). The government credibly argues that such action has “great potential to impact ICE’s ability to identify criminal aliens in state and local criminal custody.” Castaneda Reply Br. 9 n.5. It would make little sense to interpret the statute to strictly require immediate detention in all cases, since that is an impossible task, as Congress recognized.
“Words, like syllables, acquire meaning not in isolation but within their context.” K-Mart v. Cartier, 486 U.S. 281, 319 (1988) (Scalia, J., concurring in part and dissenting in part).9 Based on the textual context, we interpret § 1226(c) as requiring that criminal aliens be detained within a reasonable time after

9

“[Text] should be construed reasonably, to contain all

that it fairly means.” Scalia, J., A Matter of Interpretation,

(1997).

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their release from state criminal custody, and that what is a reasonable time must account for the inherent difficulties in identifying and locating an alien upon release from state custody. The statute does not tolerate unreasonable delays, but neither does it require strict immediacy.
As in Willings, the reasonable time within which the government must detain an alien to satisfy the “when . . . released” clause will depend on the practical necessities at hand. Since what is reasonable under the circumstances is not defined in the statute, we think the statute is ambiguous in that respect. As in other cases of statutory ambiguity, the Attorney General therefore has considerable latitude to define what constitutes a reasonable time under the Chevron framework.
Under Chevron, the interpretation must be a reasonable interpretation of the statute. Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845 (1984). As discussed above, “when . . . released” cannot mean “any time after release.” Nor do we think it would be a reasonable interpretation to view a reasonable period of time as including a delay of several years. As we discuss below, the objectives of the statute are inapplicable in such situations and enforcing such detentions would be arbitrary in the extreme. We think it plain that the petitioners were not detained within a reasonable time after their detention, and that
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the “when . . . released” clause was not satisfied here.10 Here, as
in Saysana, this court is “not persuaded that the legislature was
seeking to justify mandatory immigration custody many months or
even years after an alien had been released from state custody.”
10 The government’s briefs focus on the question of whether the “when . . . released” clause is satisfied by the detention of an alien years after release from state custody. In the alternative, the government argues that paragraph (2) of subsection (c), bars release of the alien regardless whether the alien was taken into custody pursuant to paragraph (1). See 8 U.S.C. § 1226(c)(2) (“The Attorney General may release an alien described in paragraph (1) only if [narrow conditions are met].”). The government argues that the statute is ambiguous in that respect and that we must therefore defer to the BIA’s decision in Rojas that paragraph (2) works independently of paragraph (1). We reject this argument because it is inconsistent with the language of the statute. On its face, paragraph (2) refers to aliens taken into custody pursuant to paragraph (1). If Congress had wanted to include a provision barring release of any alien who had committed a predicate act, Congress could simply have said “Any alien described in paragraphs (A) through (D) . . . .” The fact that Congress did not use the more natural and condensed wording suggests it had another purpose. Congress’ decision to only make 1226(c) apply prospectively to predicate offenses committed after enactment also refutes the government’s construction.
Moreover, this court already rejected that argument in Saysana. In that case, the issue was “whether the mandatory detention provision applies only when an alien is released from a criminal custody the basis for which is one of the [listed predicate offenses]; or, [] whether it applies whenever [such] an alien . . . is released from any criminal custody regardless of the reason for that detention.” 590 F.3d at 11. The court emphasized “[r]esolution of this issue centers on the ‘when released’ language in § 1226(c).” Id. Saysana thus recognized that the “when . . . released” language of paragraph (1) is essential to determining whether an alien is subject to mandatory detention. If paragraph (2) operated independently of paragraph (1), as Rojas and the government would have it, there would have been no reason for Saysana to consider the “when . . . released” language in its analysis.
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Saysana, 590 F.3d at 16 (quoting Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1230 (W.D. Wash. 2004)).11

B.

Notwithstanding

our

conclusion

that

the

“when . . . released” requirement was not met here, the government

claims support in a line of Supreme Court cases holding that

failure to comply with a statutory deadline did not deprive the

government of authority to act. See, e.g., Barnhart v. Peabody

Coal Co., 537 U.S. 149, 158-63 (2003); United States v. Montalvo-

Murillo, 495 U.S. 711, 717-720 (1990). Those so-called “loss of

authority” cases do not support the government’s view that aliens

are subject to mandatory detention even when the requirements of

§ 1226(c) are not complied with.

In our view, those loss of authority cases fall into two

discrete categories. On the one hand there are cases that involve

housekeeping provisions--that is, time limitations that are

procedural, horatory, advisory, or precatory, and are designed to

regulate the functioning of the government and “spur” the

government into action (see Brock v. Pierce Cnty. 476 U.S. 253, 265

11 We do not read Hosh or Sylvain as coming to a contrary conclusion. Hosh only addressed whether “when” meant immediately, and, as we do today, held that “when,” in this context, does not require strict immediacy. Hosh never stated that “when” is an entirely open-ended time period; indeed, the court acknowledged that the statute “connotes some degree of immediacy”. Hosh, 680 F.3d at 381. Sylvain failed to even address the meaning of “when.” Sylvain, 714 F.3d at 157.
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Case: 13-1994 Document: 00116748412 Page: 28 Date Filed: 10/06/2014 Entry ID: 5858025
(1986)), rather than to confer rights on regulated parties. An example of such a case is Barnhart, where the Court held that the Commissioner of Social Security retained authority to take certain actions under the Coal Industry Retiree Health Benefit Act despite failure to comply with the statutory deadline. 537 U.S. at 158-63. Similarly, in Brock, the Court upheld the Secretary of Labor’s authority to order the repayment of misused grant funds even though the audit that led to the repayment order was not completed within the time given by the statute. 476 U.S. at 266. The general rule in such cases is 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.” United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993).
On the other hand, there is another category of cases such as Montalvo-Murillo, in which the statute is not a housekeeping provision but is rather designed to protect the rights of individuals. In such circumstances a more nuanced approach is required.12
12 See French v. Edwards, 80 U.S. 506, 511 (1871), which explained that provisions “designed to secure order, system, and dispatch proceedings” “are not usually regarded as mandatory unless accompanied by negative words,” “[b]ut when the requisitions prescribed are intended for the protection of the citizen,” and that “a disregard of which his rights might be and generally would be injuriously affected,” the provisions “are not directory but mandatory.” Id.
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We first address whether this statute falls in the housekeeping category. Two other circuits have concluded that it does, and therefore ruled that aliens such as the petitioners were subject to mandatory detention despite years-long delays by the government. See Sylvain, 714 F.3d at 159 (“[T]he mandatorydetention statute is intended to protect only the public . . . .”); Hosh, 680 F.3d at 382 (“[Section] 1226 was undeniably not written for the benefit of criminal aliens facing deportation like Hosh.” (emphasis removed)). We disagree.
In determining the congressional purpose behind § 1226(c) we must consider not only the provision’s legislative history (which admittedly does not suggest a purpose to benefit alien detainees) but also constitutional considerations. We think the “when . . . released” clause must be construed as benefitting aliens detained years after release in order to avoid constitutional doubts. Avoidance of constitutional doubt is a “cardinal principle of statutory interpretation.” Zadvydas, 533 U.S. at 689 (quoting Crowell v. Benson, 285 U.S. 22, 62, (1932) (internal quotation marks omitted)). As the Supreme Court has explained countless times, “when an Act of Congress raises a serious doubt as to its constitutionality, this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Id. (quoting Crowell, 285 U.S. at 62 (internal quotation marks omitted)). This obligation
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requires us to attempt to find a constitutional purpose as well as a constitutional construction of the words of the statute. SKF USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d 1337, 1353 (Fed. Cir. 2009). We follow that guidance here.
Justice Kennedy cautioned in Demore that, “since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien . . . could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 538 U.S. at 532 (Kennedy, J., concurring). He continued: “Were there to be an unreasonable delay by [ICE] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Id.13 As a constitutional matter, mandatory detention can only be justified by the presumption of dangerousness and flight risk posed by newly released criminal defendants. But those who have resided in the community for years after release cannot reasonably be presumed either to be dangerous or flight risks. This is particularly so
13 While Justice Kennedy’s concerns were limited to the case of “a lawful permanent resident alien,” id. at 532, which Castaneda is not, we do not interpret the mandatory detention provision differently as to her or other unlawful or non-permanent resident aliens. The text of the statute provides no basis for such a distinction.
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given the breadth of offenses to which 1226(c) applies, and the inclusion of offenses such as non-violent drug possession. Mandatory detention of such individuals years after release for such crimes raises serious constitutional questions. The government acknowledged at oral argument the harsh consequences of “uprooting these individuals from the community,” a feature which only underscores the arbitrary nature of the detention.14
Despite its years-long delay in bringing removal proceedings after the petitioners’ release from criminal custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or, for that matter, in the other cases where individuals have been detained years after release. Indeed, when the district court ordered that the petitioners be given bond hearings, the government released each one, thereby indicating that the government actually viewed them as neither dangerous nor likely to flee. Castaneda was even released on her own recognizance (i.e., without a monetary bond) and before her bond hearing even took place.
Mandatory detention of individuals such as the petitioners appears arbitrary on its face. We are left to wonder
14 We also note other circuits have raised significant constitutional concerns associated with arbitrary application of the statute where long-term detention occurs and have construed 1226(c) as not applying in such circumstances. See CasasCastrillon v. Dept. of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003).
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whether the petitioners’ sudden arrest and detention is not “to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons,” which would offend due process. Zadvydas, 533 U.S. at 690. Under these circumstances, we think § 1226(c) must be interpreted as designed to benefit alien detainees who were detained years after release from criminal custody in order to avoid constitutional concerns.
The government argues that even if § 1226(c) is not a housekeeping provision, but instead is read to benefit aliens who were released years earlier, Montalvo-Murillo supports its position. There, the Supreme Court addressed the Bail Reform Act’s requirement that a suspect held in pretrial custody must be given a bail hearing “immediately upon the person’s first appearance,” a provision designed to protect the rights of criminal defendants. 495 U.S. at 714 (quoting 18 U.S.C. § 3142(f) (1988)). The Supreme Court nevertheless concluded that the failure to provide an immediate bail hearing did not deprive the government of all authority to hold the defendant. The Court expressed concern that, in ordering the suspect’s release, the lower courts had “invent[ed]” a remedy unsupported by the statutory text: “Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in release of a person who should otherwise be detained.” Id. at 71617, 721. Even if some remedy were required, the Court explained,
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“[w]e need seek only a practical remedy, not one that strips the Government of all authority to act.” Id. at 719. “When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.” Id. at 718 (quoting Brock, 476 U.S. at 260 (internal quotation marks omitted)).
The cases before us stand in stark contrast to MontalvoMurillo, and the absence of the factors the Court found compelling there dictates the opposite result here. First, the district courts here did not “invent” a remedy unsupported by the statute’s text. Rather, the grant of limited habeas relief requiring a bond hearing reflected the structure of the detention provisions as a whole. Mandatory detention under subsection (c) is an exception; general detention under subsection (a) is the default rule. See § 1226(a) (“Except as provided in subsection (c) . . . .”). If subsection (c) does not apply, it follows naturally that subsection (a) does, and that the petitioners must be given a bond hearing. So unlike in Montalvo-Murillo, the remedy here comports with the text and structure of the statute.
Second, unlike Montalvo-Murillo, the district court decisions here did not strip the Attorney General of authority to detain the petitioners. Under section 1226(a) the Attorney General has broad and unreviewable discretion to determine whether individual aliens should be afforded release on bond. 8 U.S.C.
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§ 1226(a)(1)-(2) (stating that the Attorney General “may continue to detain the arrested alien” and “may release the alien” on bond or parole, but placing no constraints on the Attorney General’s decision); id § 1226(e) (prohibiting judicial review). In exercising this discretion, the Attorney General may adopt any regulation that “has a ‘reasonable foundation,’” meaning that it “rationally pursues a purpose that it is lawful . . . to seek.” Reno v. Flores, 507 U.S. 292, 309 (1993) (quoting Carlson v. Landon, 342 U.S. 524, 541 (1952)). The grant of habeas relief in these cases merely forced the Attorney General to consider releasing the petitioners. He retained full authority to decline.
Third, unlike Montalvo-Murillo, the remedy here is not drastic. The lower courts in Montalvo-Murillo “mandat[ed] release of possibly dangerous defendants.” Montalvo-Murillo, 495 U.S. at 720. The district courts here did no such thing. They did not order the petitioners’ release; they ordered that the petitioners be given a hearing at which the government has discretion to continue their detention if it finds them dangerous or a flight risk. It was the government itself that determined to release Castaneda and Gordon.
In light of these significant differences, we think that Montalvo-Murillo does not apply here, and that violating the command of the statute for detention “when . . . released” is properly enforced by requiring an individualized hearing.
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IV. Section 1226(c) requires detention of aliens such as the petitioners “when . . . released.” Because the petitioners were not timely detained under any reasonable interpretation of the statute, we conclude that the petitioners are not subject to mandatory detention under § 1226(c). They are not subject to an irrebuttable presumption of dangerousness and flight risk, but are rather entitled to an individualized determination by the Attorney General of such factors. We therefore affirm the decisions of the district courts granting habeas relief to the petitioners.15
AFFIRMED Costs to appellees.
15 We note in conclusion that many district courts across the country have adopted the interpretation of § 1226(c) that we adopt today. See, e.g., Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1130 (S.D. Cal. 1999); Ortiz v. Holder, No. 2:11-cv-1146 DAK, 2012 WL 893154, at *3-4 (D. Utah Mar. 14 2012); Harris v. Lucero, Civil Action No. 1:11-cv-692, 2012 WL 603949, at *3 (E.D. Va. Feb 23, 2012); Parfait v. Holder, Civil No. 11-4877 (DMC), 2011 WL 4829391, at *4-9 (D.N.J. Oct. 11, 2011); Rianto v. Holder, No. CV-11-0137PHX-FJM, 2011 WL 3489613, at *3 (D. Ariz. Aug. 9, 2011). Indeed, that interpretation appears to be the majority view. See Sylvain, 714 F.3d at 157 (collecting cases).
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