United States Court of Appeals 

For the First Circuit 

No. 14-1729 

CLAYTON RICHARD GORDON, on behalf of himself and others 

similarly situated; NHAN PHUNG VU; GUSTAVO RIBEIRO FERREIRA; 

VALBOURN SAHIDD LAWES; CESAR CHAVARRIA RESTREPO, 

Petitioners, Appellees, 

PRECIOSA ANTUNES, 

Petitioner, 

v. 

LORETTA E. LYNCH, Attorney General; JOHN SANDWEG, Acting 

Director; SEAN GALLAGHER, Acting Field Office Director; 

CHRISTOPHER J. DONELAN, Sheriff; JEH CHARLES JOHNSON, Secretary 

of Homeland Security; MICHAEL G. BELLOTTI, Sheriff; STEVEN W. 

TOMPKINS, Sheriff; THOMAS M. HODGSON, Sheriff; JOSEPH D. 

MCDONALD, JR., Sheriff, 

Respondents, Appellants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Michael A. Ponsor, U.S. District Judge] 

Before 

Lynch and Selya, Circuit Judges, 

and Burroughs,* District Judge. 

 * Of the District of Massachusetts, sitting by designation. 
Hans H. Chen, Office of Immigration Litigation, Civil 

Division, United States Department of Justice, with whom Sarah B. 

Fabian, Senior Litigation Counsel, District Court Section, Office 

of Immigration Litigation, Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General, Civil Division, Leon Fresco, Deputy 

Assistant Attorney General, Civil Division, and William C. 

Peachey, Director, District Court Section, Office of Immigration 

Litigation, were on brief, for appellants. 

Adriana Lafaille, with whom Matthew R. Segal, American Civil 

Liberties Union of Massachusetts, Judy Rabinovitz, Michael Tan, 

and ACLU Foundation Immigrants' Rights Project were on brief, for 

appellees. 

Matthew E. Price, Emily A. Bruemmer, and Jenner & Block LLP 

on brief for the American Immigration Lawyers Association, amicus 

curiae. 

George N. Lester, Erin Brummer, Victoria Morte, Stephanie S. 

Pimentel, Daniel Ruemenapp, and Fragomen, Del Rey, Bernsen & Loewy, 

LLP on brief for Families for Freedom, Greater Boston Legal 

Services, Immigrant Defense Project, National Immigrant Justice 

Center, and University of Maine School of Law Immigrant and Refugee 

Rights Clinic, amici curiae. 

November 21, 2016 
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LYNCH, Circuit Judge. This court, sitting en banc in 

Castañeda v. Souza, 810 F.3d 15 (1st Cir. 2015) (en banc), divided 

evenly over the question of whether the "when . . . released" 

clause in 8 U.S.C. § 1226(c)(1) limits the scope of § 1226(c)(2). 

More specifically, the question was whether § 1226(c)(2) 

categorically "bars the Attorney General from releasing certain 

aliens on bond once they have been placed in immigration custody" 

only if she takes those aliens into immigration custody "'when 

[they are] released' from criminal custody." Castañeda, 810 F.3d 

at 18-19 (opinion of Barron, J.) (alteration in original). 

The result of the Castañeda deadlock was a nonprecedential affirmance of the district court judgments as to two 

specific petitioners (but not necessarily of the reasoning 

underlying those judgments). Those judgments had found 

unreasonable the government's years-long delay in detaining the 

specific petitioners at issue (Gordon and Castañeda) and had 

granted their individual requests for habeas relief, in the form 

of individualized bond hearings. See id. at 38; Gordon v. Johnson, 

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

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

We will recapitulate only briefly the positions of the 

judges on each side of the Castañeda divide. To reiterate, the 

disagreement focused on whether § 1226(c)(2) bars bonded release 

(1) for any alien who committed a crime described in 
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§ 1226(c)(1)(A)–(D), regardless of when the alien was taken into 

immigration custody; or (2) for only those aliens who committed 

such a crime and were taken into immigration custody within some 

defined or reasonable period following their release from criminal 

custody. 

Judge Barron, writing for himself and two other members 

of the en banc court, stated that "Congress's evident intent," 

Castañeda, 810 F.3d at 36, was for "the cross-reference in 

§ 1226(c)(2) to refer to an alien taken into custody pursuant to 

the duty imposed by [§ 1226](c)(1) as a whole rather than only to 

an alien described in subparagraphs (A)–(D)," id. at 30. 1 Judge 

Barron's opinion further concluded that, "at least absent an 

 1 Subparagraphs (A)–(D) of § 1226(c)(1) delineate four 

categories of aliens convicted of crimes and subject to mandatory 

immigration detention under § 1226(c). These categories, 

collectively, cover aliens who were convicted of certain crimes of 

moral turpitude, controlled substance offenses, aggravated 

felonies, firearm offenses, or acts associated with terrorism. 

Specifically, § 1226(c) pertains to 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), 

(A)(iii), (B), (C), or (D) . . . , 

(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 sentence[d] 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 [§] 1227(a)(4)(B) . . . . 

8 U.S.C. § 1226(c)(1)(A)–(D). 
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authoritative agency construction of § 1226(c)(2), . . . the word 

'when' does set forth a time constraint on [§ 1226](c) that expires 

after a reasonable time." Id. at 43. 

Judge Kayatta, writing for himself and two other members 

of the en banc court, disagreed on several grounds. As a matter 

of statutory interpretation, his opinion maintained that a 

"reasonable jurist c[ould] read the phrase 'as described in 

[§ 1226(c)(1)]' as not incorporating into [§ 1226(c)(2)] the phrase 

'when released.'" Id. at 58 (opinion of Kayatta, J.). And even 

if Judge Barron's opinion was right on that first point, Judge 

Kayatta's opinion went on, it still "d[id] not follow that the 

mandate of [§ 1226(c)](2) is also contingent upon prompt compliance 

with the mandate of [§ 1226(c)](1)." Id. at 59. 

While that particular issue concerning the 

interpretation of § 1226(c) was on appeal -- first to a panel of 

this court, Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014) 

(withdrawn panel opinion), and then to the full en banc court -- 

the district court issued two orders. The first order, issued on 

March 27, 2014, certified the following class of present and future 

detainees who had committed (or would commit) serious crimes: 

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 
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five days) of release from the relevant predicate 

custody. 

Gordon v. Johnson, 300 F.R.D. 28, 30 (D. Mass. 2014) (emphasis 

added). 

In the second order, issued on May 21, 2014, the district 

court further explained its reasoning on class certification, 

granted summary judgment to the class, and issued declaratory and 

injunctive relief. Gordon v. Johnson, 300 F.R.D. 31 (D. Mass. 

2014). This second order ("the remedial order") -- which builds 

on the class-certification order -- is at issue in this appeal. 

Consistent with the class-certification order, the 

remedial order provided relief on a class-wide basis and 

established a class-wide, bright line rule as to relief, eschewing 

any attempt to fashion individualized relief or to permit the Board 

of Immigration Appeals or the Department of Homeland Security 

("DHS") to address the appropriate remedy. In pertinent part, the 

court ordered 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 
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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). 

Id. at 43. 

We held in abeyance the government's appeal of the 

remedial order, pending our decision in Castañeda, because of the 

obvious relevance of each appeal to the other. The district court 

entered the remedial order on May 21, 2014, long before this court 

expressed its views in the en banc Castañeda opinions. Therein 

lies the rub. 

The government now argues in this appeal that the 

remedial order is inconsistent with the opinions in Castañeda, 

along several lines of reasoning: (1) that neither Judge Barron's 

opinion nor Judge Kayatta's opinion contemplated class-wide, 

bright line relief of this sort; (2) that 48 hours, a deadline 

imposed by the district court, is a plainly unreasonable choice 

for a bright line rule, given the variety of possible reasons for 

DHS delay in apprehending a § 1226(c)-eligible alien after the 

moment of release from criminal custody; and (3) that in any event, 

it is initially within the authority of DHS, and not a federal 

district court, to determine what constitutes a reasonable time 
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between release from criminal custody and DHS detention.2 The 

government has also argued that 8 U.S.C. § 1252(f)(1) and the 

Castañeda opinions forbade the district court from issuing a classwide injunction and thereby interfering with DHS's enforcement of 

the statute.3

The primary difficulty with the government's postCastañeda arguments to us is that those arguments have never been 

presented to the district court, post-Castañeda, nor has the 

government asked the district court to modify the remedial 

injunction in light of that decision and other developments. We 

think it best to leave these matters for the district court to 

address on remand in the first instance. In reaching this 

 2 The American Civil Liberties Union, representing the 

petitioners, argues that the government's sparse brief has waived 

all arguments aside from the argument that neither Castañeda 

opinion contemplated class-wide, bright line relief. We disagree; 

these arguments are interrelated. 

Regardless, in situations that heavily implicate the 

public interest and questions of comity between federal 

institutions, we have the discretion to consider arguments that 

might ordinarily be deemed waived. Nat'l Ass'n of Soc. Workers v. 

Harwood, 69 F.3d 622, 627–29 (1st Cir. 1995); see also Chestnut v. 

City of Lowell, 305 F.3d 18, 21 (1st Cir. 2002) (en banc) (per 

curiam); United States v. La Guardia, 902 F.2d 1010, 1013 (1st 

Cir. 1990). 

3 Under the heading "Limit on injunctive relief," 

§ 1252(f)(1) provides that "no court (other than the Supreme Court) 

shall have jurisdiction or authority to enjoin or restrain the 

operation of the provisions of [§§ 1221–1232] . . . other than 

with respect to the application of such provisions to an individual 

alien against whom proceedings under such [sections] have been 

initiated." 
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conclusion, we wish to be clear that we take seriously the argument 

that the logic of both principal opinions in Castañeda is 

inconsistent with the assumptions underlying the district court's 

remedial order -- both as to deference to agency expertise and as 

to the need for individualized relief, tailored to the factual 

circumstances presented. 

With respect to agency expertise, the Supreme Court has 

often reiterated that "the well-reasoned views of the agencies 

implementing a statute 'constitute a body of experience and 

informed judgment to which courts and litigants may properly resort 

for guidance.'" Bragdon v. Abbott, 524 U.S. 624, 642 (1998) 

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944)); 

see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) ("It is 

clear that principles of Chevron deference are applicable to this 

statutory scheme." (citing Chevron U.S.A. Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 842 (1984))). Neither of the two 

principal Castañeda opinions abandoned that principle of 

deference. 

In addition, neither opinion contemplated as an 

appropriate remedy a bright line rule (e.g., 48 hours), fashioned 

judicially without any agency input. Judge Kayatta's opinion 

plainly did not endorse such a rule: by his reading, the government 

can reasonably interpret § 1226(c)(2)'s bar to bonded release as 

entirely unrestricted by the "when . . . released" clause of 
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§ 1226(c)(1), and so "whether the Attorney General complied with 

[§ 1226(c)(1)'s] mandate right away" is irrelevant to the 

applicability of § 1226(c)(2). Castañeda, 810 F.3d at 59 (opinion 

of Kayatta, J.). Moreover, his opinion identified numerous factors 

that might increase the reasonableness of a delay in taking a 

criminal alien into DHS custody: an alien might have evaded 

detention and gone into hiding upon release from criminal custody, 

or state officials might have failed to provide federal authorities 

with timely and accurate information about the impending release 

of a § 1226(c)-eligible alien.4 See id. at 51–52. 

Nor did Judge Barron's opinion contemplate a bright line 

test for the reasonableness of a gap in custody. His opinion 

interpreted the "when . . . released" clause as imposing a 

limitation on the applicability of § 1226(c)(2) -- but only "a 

time constraint . . . that expires after a reasonable time," not 

a line in the sand. Id. at 43 (opinion of Barron, J.) (emphasis 

added); see also id. at 38 ("[W]e need not define the bounds of 

reasonableness in this case as they were plainly exceeded."). 

In light of the affirmance via deadlock in Castañeda, it 

is open to question whether the district court erred by reading 

 4 At oral argument in this case, the government offered an 

additional hypothetical: a federal official who is unable to 

collect a § 1226(c)-eligible alien promptly at the end of the 

alien's criminal sentence because of adverse weather conditions or 

other barriers to interstate travel. 
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the "when . . . released" clause as imposing some sort of 

reasonable immediacy requirement on the government's ability to 

invoke § 1226(c)(2)'s bar to bonded release in this circuit. But 

a class-wide, bright line rule of a mere 48 hours, with no mention 

of an alien's potential culpability for delay, is inconsistent 

with the reasoning and logic of both Castañeda opinions.5

Accordingly, we vacate the remedial order's grant of 

summary judgment, declaratory judgment, and injunctive relief.6 

We believe the district court would benefit from requiring the 

agency to articulate its position on what constitutes a reasonable 

custody gap under § 1226(c), as well as what practical problems, 

if any, have resulted from the remedial order since its issuance 

in May 2014. We also believe the district court should reexamine 

 5 Moreover, the district court's bright line rule is 

inconsistent with the approach taken by the Ninth Circuit in Preap 

v. Johnson, 831 F.3d 1193 (9th Cir. 2016) (motion for extension of 

time to file petition for rehearing or rehearing en banc granted 

Nov. 3, 2016). Adopting the position from Judge Barron's Castañeda 

opinion that "§ 1226(c) applies only to those criminal aliens who 

are detained promptly after their release from criminal custody," 

id. at 1206, the Preap court declined to determine "exactly how 

promptly an alien must be brought into immigration custody after 

being released from criminal custody for the transition to be 

immediate enough to satisfy the 'when . . . released' requirement," 

id. at 1207. Instead, the preliminary injunctive relief in Preap 

applied "to a class of aliens who were not 'immediately detained' 

when released from criminal custody." Id. The court did note, 

however, that "depending on the circumstances of an individual 

case, an alien may be detained 'when . . . released' even if 

immigration authorities take a very short period of time to bring 

the alien into custody." Id. 

6 The May 21, 2014 remedial order is the only judgment 

before us. 
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its position on the inapplicability of § 1252(f)(1) -- which 

expressly provides a "[l]imit on injunctive relief" in the context 

of this statutory scheme -- particularly in light of our Castañeda 

opinions. Finally, we direct the district court to consider the 

parallel due process issues in Reid v. Donelan, 819 F.3d 486 (1st 

Cir. 2016), and this court's disposition of that case, in 

conjunction with the Supreme Court's impending consideration of 

related due process issues. See Rodriguez v. Robbins, 804 F.3d 

1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez, 

136 S. Ct. 2489 (2016) (No. 15-1204). 

In light of this disposition, our final task is to 

address the fact that the remedial injunction is currently in 

effect -- and has been for more than two years. If the government 

has identified practical problems with that relief, it must say so 

and not remain silent. We stay our judgment vacating the 

injunction, for a period of 90 days, to permit the district court 

to determine how to proceed on remand. If there is delay by the 

government in responding to orders of the district court, the 

petitioners may apply to this court for an extension of the stay.7 

No costs are awarded. 

So ordered. 

 7 We gratefully acknowledge the two amicus curiae briefs, 

filed by American Immigration Lawyers Association and by Families 

for Freedom et al., respectively.