FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONY PREAP; EDUARDO VEGA 

PADILLA; JUAN LOZANO 

MAGDALENO,

Plaintiffs-Appellees,

v.

JEH JOHNSON, Secretary, 

Department of Homeland 

Security; LORETTA E. LYNCH, 

Attorney General; TIMOTHY S.

AITKEN; GREGORY 

ARCHAMBEAULT; DAVID 

MARIN,

Defendants-Appellants.

Nos. 14-16326

14-16779

D.C. No.

4:13-cv-05754-YGR

OPINION

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted July 8, 2015

Seattle, Washington

Filed August 4, 2016

Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Nguyen
2 PREAP V. JOHNSON

SUMMARY*

Immigration

The panel affirmed the district court’s class certification 

order and preliminary injunction in a class action habeas 

petition brought by criminal aliens subject to mandatory 

detention under 8 U.S.C. § 1226(c).

The panel held that under the plain language of 8 U.S.C. 

§ 1226(c), the government may detain without a bond 

hearing only those criminal aliens it takes into immigration 

custody promptly upon their release from the triggering 

criminal custody.

The panel specified that it was holding that the 

mandatory detention provision of § 1226(c) applies only to 

those criminal aliens detained promptly after their release 

from criminal custody, not to those detained long after.

COUNSEL

Hans Harris Chen (argued) and Troy D. Liggett, Trial 

Attorneys; Elizabeth J. Stevens, Assistant Director; William 

C. Peachey, Director, District Court Section; Civil Division, 

Office of Immigration Litigation, United States Department 

of Justice, Washington, D.C.; for Defendants-Appellants.

 * This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
PREAP V. JOHNSON 3

Theresa H. Nguyen (argued) and Ashok Ramani, Keker & 

Van Nest LLP, San Francisco, California; Michael K.T. Tan, 

ACLU Immigrants’ Rights Project, New York, New York; 

Julia Harumi Mass, ACLU Foundation of Northern 

California, San Francisco, California; Anoop Prasad, Asian 

Law Caucus, San Francisco, California; for PlaintiffsAppellees.

OPINION

NGUYEN, Circuit Judge:

Every day in the United States, the government holds 

over 30,000 aliens in prison-like conditions while 

determining whether they should be removed from the 

country.1

 Some are held because they were found, in a bond 

hearing, to pose a risk of flight or dangerousness. 8 U.S.C. 

§ 1226(a); 8 C.F.R. § 1236.1(d). Others, however, are held 

without bond because they have committed an offense 

enumerated in a provision of the Immigration and 

Naturalization Act (“INA”). 8 U.S.C. § 1226(c). Aliens in 

this latter group are subject to the INA’s mandatory 

detention provision, which requires immigration authorities 

to detain them “when [they are] released” from criminal 

custody, 8 U.S.C. § 1226(c)(1), and to hold them without 

bond, 8 U.S.C. § 1226(c)(2). A broad range of crimes is 

covered under the mandatory detention provision, from 

serious felonies to misdemeanor offenses involving moral 

 1 U.S. Immigration and Customs Enforcement, ERO Facts and 

Statistics 3 (2011), http://www.ice.gov/doclib/foia/reports/ero-factsand-statistics.pdf.
4 PREAP V. JOHNSON

turpitude and simple possession of a controlled substance. 

8 U.S.C. §§ 1226(c)(1)(A)–(D).

This mandatory detention provision has been challenged 

on various grounds. See, e.g., Demore v. Kim, 538 U.S. 510, 

513 (2003) (upholding the constitutionality of the provision 

against a due process challenge); Rodriguez v. Robbins, 

804 F.3d 1060, 1078–81 (9th Cir. 2015) (Rodriguez III), 

cert. granted sub nom., Jennings v. Rodriguez, No. 15-1204, 

2016 WL 1182403 (June 20, 2016) (holding that detainees 

are entitled to a bond hearing after spending six months in 

custody).2 Here, we are faced with another such challenge; 

this time, regarding the meaning of the phrase “when [they 

are] released” in § 1226(c)(1), and whether it limits the 

category of aliens subject to detention without bond under 

§ 1226(c)(2). Specifically, we must decide whether an alien 

must be detained without bond even if he has resettled into 

the community after release from criminal custody. If the 

answer is no, then the alien may still be detained, but he may 

seek release in a bond hearing under § 1226(a) by showing 

that he poses neither a risk of flight nor a danger to the 

community.

Addressing this issue requires us to consider the 

interaction of the two paragraphs of the mandatory detention 

provision, 8 U.S.C. § 1226(c). Paragraph (1) requires the 

Attorney General (“AG”) to “take into custody any alien 

who [commits an offense enumerated in subparagraphs (A)–

(D)] when the alien is released [from criminal custody].” 

8 U.S.C. § 1226(c)(1). Paragraph (2) prohibits the release of 

“an alien described in paragraph (1)” except in limited 

 2 For a detailed history of decisions from the Supreme Court and this 

court dealing with the various immigration detention statutes, see 

Rodriguez III, 804 F.3d at 1067–70.
PREAP V. JOHNSON 5

circumstances concerning witness protection. 8 U.S.C. 

§ 1226(c)(2). Plaintiffs argue that the phrase “when . . . 

released” in paragraph (1) applies to paragraph (2) as well, 

so that an alien must be held without bond only if taken into 

immigration custody promptly upon release from criminal 

custody for an enumerated offense. The government, by 

contrast, argues that “an alien described in paragraph (1)” is 

any alien who commits a crime listed in §§ 1226(c)(1)(A)–

(D) regardless of how much time elapses between criminal 

custody and immigration custody. According to the 

government, individuals not detained “when . . . released” 

from criminal custody as required by paragraph (1) are still 

considered “alien[s] described in paragraph (1)” for 

purposes of the bar to bonded release in paragraph (2).

To date, five of our sister circuits have considered this 

issue, and four have sided with the government. 

Significantly, however, there is no consensus in the 

reasoning of these courts. The Second and Tenth Circuits 

found that the phrase “an alien described in paragraph (1)” 

was ambiguous, and thus deferred to the BIA’s interpretation 

of the phrase to mean “an alien described in subparagraphs 

(A)–(D) of paragraph (1).” See Lora v. Shanahan, 804 F.3d 

601, 612 (2d Cir. 2015) (“Consistent with Chevron, we are 

not convinced that the interpretation is ‘arbitrary, capricious, 

or manifestly contrary to the statute.’” (quoting Adams v. 

Holder, 692 F.3d 91, 95 (2d Cir. 2012))); Olmos v. Holder, 

780 F.3d 1313, 1322 (10th Cir. 2015) (“The text, the 

statutory clues, and canons of interpretation do not 

definitively clarify the meaning of § 1226(c).”). The Fourth 

Circuit has held that “when . . . released” means any time 

after release, but it did so under a misconception that the BIA 
6 PREAP V. JOHNSON

had so interpreted the phrase.3 Hosh v. Lucero, 680 F.3d 

375, 380–81 (4th Cir. 2012). Finally, the Second, Third, and 

Tenth Circuits applied the loss-of-authority rule, finding that 

the AG’s duty to detain criminal aliens under § 1226(c)(1) 

continues even if the government fails to comply with the 

“when . . . released” condition. See, e.g., Sylvain v. Atty Gen. 

of United States, 714 F.3d 150, 157 (3d Cir. 2013) (holding 

that “[e]ven if the statute calls for detention ‘when the alien 

is released,’ and even if ‘when’ implies something less than 

four years, nothing in the statute suggests that immigration 

officials lose authority if they delay”); see also Lora, 

804 F.3d at 612; Olmos, 780 F.3d at 1325–26.

On the other hand, the government’s position has been 

rejected by most district courts to consider the question and, 

most recently, by three of six judges sitting en banc in the 

First Circuit.4

 See Castañeda v. Souza, 810 F.3d 15, 18–43 

(1st Cir. 2015) (en banc) (Barron, J.). In an opinion written 

by Judge Barron, these three judges concluded that the 

statutory context and legislative history make clear that 

aliens can be held without bond under § 1226(c)(2) only if 

taken into immigration custody pursuant to § 1226(c)(1) 

 3 As other circuits have recognized, the BIA has never formally 

interpreted the phrase “when the alien is released.” See, e.g., Sylvain v. 

Atty Gen. of United States, 714 F.3d 150, 157 n.9 (3d Cir. 2013) (“The 

specific term interpreted in Rojas is the phrase ‘an alien described in 

paragraph (1).’”). In fact, far from interpreting the phrase in the manner 

suggested by the Fourth Circuit, the BIA has said in passing that “when 

. . . released” does require immediacy. In re Rojas, 23 I. & N. Dec. 177, 

122 (BIA 2001) (“The statute does direct the [AG] to take custody of 

aliens immediately upon their release from criminal confinement.”).

 4 Because the First Circuit split evenly on the question, its opinions are 

not binding on lower courts. The district court’s judgments were 

affirmed. Castañeda, 810 F.3d at 19.
PREAP V. JOHNSON 7

“when . . . released” from criminal custody, not if there is a 

lengthy gap after their release. See id. at 36, 38.

We agree with Judge Barron and his two colleagues. The 

statute unambiguously imposes mandatory detention 

without bond only on those aliens taken by the AG into 

immigration custody “when [they are] released” from 

criminal custody. And because Congress’s use of the word 

“when” conveys immediacy, we conclude that the 

immigration detention must occur promptly upon the aliens’ 

release from criminal custody.

I.

The named Plaintiffs in this case are lawful permanent 

residents who have committed a crime that could lead to 

removal from the United States. Plaintiffs served their 

criminal sentences and, upon release, returned to their 

families and communities. Years later, immigration 

authorities took them into custody and detained them 

without bond hearings under § 1226(c). Plaintiffs argue that 

because they were not detained “when . . . released” from 

criminal custody, they were not subject to mandatory 

detention under § 1226(c). 5

Mony Preap, born in a refugee camp after his family fled 

Cambodia’s Khmer Rouge, has been a lawful permanent 

resident of the United States since 1981, when he 

immigrated here as an infant. He has two 2006 misdemeanor 

convictions for possession of marijuana. Years after being 

 5 Plaintiffs raised both a statutory challenge and a Due Process 

challenge before the district court. The district court resolved the case 

on statutory grounds, and thus did not reach the Due Process question. 

Preap v. Johnson, 303 F.R.D. 566, 574 n.5 (N.D. Cal. 2014). Neither do 

we.
8 PREAP V. JOHNSON

released at the end of his sentences for these convictions, 

Preap was transferred to immigration detention upon serving 

a short sentence for simple battery (an offense not covered 

by the mandatory detention statute) and held without a bond 

hearing. Since the instant litigation began, Preap has been 

granted cancellation of removal and released from 

immigration custody.6

Eduardo Vega Padilla has been a lawful permanent 

resident since 1966, shortly after he came to the United 

States as an infant. Padilla also has two drug possession 

convictions—one from 1997 and one from 1999—and a 

2002 conviction for owning a firearm with a prior felony 

conviction. Eleven years after finishing his sentence on that 

last conviction, he was placed in removal proceedings and 

held in mandatory detention. Padilla eventually obtained 

release after receiving a bond hearing under our decision in 

Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1144 

(9th Cir. 2013), in which we held that the government’s 

detention authority shifts from § 1226(c) to § 1226(a) after a 

detainee has spent six months in custody; Rodriguez v. 

 6 The district court rejected the government’s argument that Preap’s 

cancellation of removal mooted his claim, and the government has not 

challenged that determination. We agree that the claims of the named 

Plaintiffs on behalf of the class are not mooted by Plaintiffs’ release from 

detention or termination of removal proceedings because the claims are 

“transitory in nature and may otherwise evade review.” Pitts v. Terrible 

Herbst, Inc., 653 F.3d 1081, 1090-91 (9th Cir. 2011); see also U.S. 

Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980) (explaining when 

a “claim on the merits is ‘capable of repetition, yet evading review,’ the 

named plaintiff may litigate the class certification issue despite loss of 

his personal stake in the outcome of the litigation” (quoting Gerstein v. 

Pugh, 420 U.S. 103, 110 n.11 (1975))); Haro v. Sebelius, 747 F.3d 1099, 

1110 (9th Cir. 2014) (holding that Article III justiciability requirements 

were satisfied despite the expiration of the named plaintiff’s claim for 

injunctive relief).
PREAP V. JOHNSON 9

Robbins, 804 F.3d 1060, 1078–81 (9th Cir. 2015) (Rodriguez 

III), cert. granted sub nom., Jennings v. Rodriguez, No. 15-

1204, 2016 WL 1182403 (June 20, 2016).

Juan Lozano Magdaleno has been a lawful permanent 

resident since he immigrated to the United States as a 

teenager in 1974. Magdaleno has a 2000 conviction for 

owning a firearm with a prior felony conviction, and a 2007 

conviction for simple possession of a controlled substance. 

He was sentenced to six months on the possession charge 

and released from jail in January 2008. Over five years later, 

Magdaleno was taken into immigration custody and held 

without bond pursuant to § 1226(c). He also was later 

released from detention following a Rodriguez hearing.

These three Plaintiffs filed a class action petition for 

habeas relief in the Northern District of California. The 

district court granted their motion for class certification, 

certifying a class of all “[i]ndividuals in the state of 

California who are or will be subjected to mandatory 

detention under 8 U.S.C. section 1226(c) and who were not 

or will not have been taken into custody by the government 

immediately upon their release from criminal custody for a 

Section 1226(c)(1) offense.” The district court also issued a 

preliminary injunction requiring the government to provide 

all class members with bond hearings under § 1226(a).7 

Preap v. Johnson, 303 F.R.D. 566, 571, 584 (N.D. Cal. 

2014). This appeal followed.

 7 The district court held that if the named Plaintiffs prevailed in their 

interpretation of § 1226(c), then they would have met their burden under 

all four prongs of the preliminary injunction test set forth in Winter v. 

Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). The 

government has waived any challenge to that determination by declining 

to dispute it on appeal.
10 PREAP V. JOHNSON

II.

We have jurisdiction to review this class action habeas 

petition under 28 U.S.C. § 1291. The jurisdiction-stripping 

provision of 8 U.S.C. § 1226(e), which bars judicial review 

of discretionary agency decisions regarding immigrant 

detention, does not bar us from hearing “challenges [to] the 

statutory framework that permits [petitioners’] detention 

without bail.” Demore v. Kim, 538 U.S. 510, 517 (2003). 

We review questions of statutory construction de novo. 

United States v. Bert, 292 F.3d 649, 651 (9th Cir. 2002).

III.

The government’s authority to detain immigrants in 

removal proceedings arises from two primary statutory 

sources.8

 The first, 8 U.S.C. § 1226(a), grants the AG 

discretion to arrest and detain any alien upon the initiation of 

removal proceedings.9 Under this provision, the AG may 

then choose to keep the alien in detention, or allow release 

on conditional parole or bond. 8 U.S.C. § 1226(a)(1)–(2).10 

 8 Other provisions of the Immigration and Nationality Act (INA) 

govern the detention of individuals considered “applicants for 

admission,” see 8 U.S.C. § 1225(b), or those awaiting deportation after 

entry of a final order of removal, see 8 U.S.C. § 1231(a), among other 

categories. These detention provisions are not implicated here.

 9 The Homeland Security Act of 2002, Pub. L. No. 107-296 § 471, 116 

Stat. 2135 (2002), moved many immigration enforcement 

responsibilities from the Department of Justice to the Department of 

Homeland Security. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 

(9th Cir. 2003). Because the statute at issue refers to the Attorney 

General, we will continue to do so here.

 10 The discretionary detention provision reads as follows:
PREAP V. JOHNSON 11

If the AG opts for detention, the alien may seek review of 

that decision at a hearing before an immigration judge (“IJ”), 

8 C.F.R. § 236.1(d)(1), who may overrule the AG and grant 

release on bond, id. § 1003.19. The alien bears the burden 

of proving his suitability for release, and the IJ should 

consider whether he “is a threat to national security, a danger 

to the community at large, likely to abscond, or otherwise a 

poor bail risk.” Matter of Guerra, 24 I. & N. Dec. 37, 40 

(BIA 2006); see also 8 § C.F.R. 1236.1(c)(8).

The second provision is 8 U.S.C. § 1226(c), the 

mandatory detention provision at issue in this case. 

Importantly, this provision operates as a limited exception to 

§ 1226(a). See 8 U.S.C. § 1226(a). (“Except as provided in 

subsection (c) of this section . . .”). Section 1226(c) reads as 

follows:

 

(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 with security 

approved by, and containing conditions 

prescribed by, the Attorney General; or

(B) conditional parole[.]

8 U.S.C. § 1226(a).
12 PREAP V. JOHNSON

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody 

any alien who –

(A) is inadmissible by reason of having 

committed any offense covered in 

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

(B) is deportable by reason of having 

committed any offense covered in 

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

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

(C) is deportable under section 

1227(a)(2)(A)(i) of this title on the 

basis of an offense for which the alien 

has been sentence [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.
PREAP V. JOHNSON 13

(2) Release

The Attorney General may release an 

alien described in paragraph (1) only if 

the Attorney General decides pursuant to 

[the Federal Witness Protection Program] 

that release of the alien from custody is 

necessary . . . [and] the alien will not pose 

a danger to . . . safety . . . and is likely to 

appear for any scheduled proceeding.

8 U.S.C. § 1226(c) (emphases added) (footnote omitted). 

We must decide the proper scope of this mandatory 

detention exception, and specifically whether it applies to 

aliens who are not promptly placed in removal proceedings 

upon their release from criminal custody for an offense listed 

in § 1226(c)(1)(A)–(D).

The government advances three arguments to support its 

view that Plaintiffs are subject to mandatory detention under 

§ 1226(c). First, it argues that we should give Chevron

deference, as have the Second and Tenth Circuits, to the 

BIA’s interpretation that the phrase “an alien described in 

Paragraph (1)” means “an alien described in subparagraphs 

(A)–(D) of paragraph (1),” thus subjecting all criminal aliens 

who have committed one of the listed crimes to mandatory 

detention regardless of when they were taken into 

immigration custody. See In re Rojas, 23 I. & N. Dec. 117, 

121 (BIA 2001). Second, the government argues that we 

should follow the Fourth Circuit in holding that “when . . . 

released” is a duty-triggering clause, not a time-limiting 

clause, and that, as such, it merely informs the AG when the 

duty to detain arises, not when the duty must be performed. 
14 PREAP V. JOHNSON

Hosh v. Lucero, 680 F.3d 375, 381 (4th Cir. 2012).11 Third, 

the government argues that we should follow the Second, 

Third, and Tenth Circuits in holding that, even if Congress 

intended that immigration authorities promptly detain 

criminal aliens when they are released from criminal 

custody, Congress did not clearly intend that they would lose 

the authority to do so in the event of delay.

We find all three arguments unpersuasive. We agree 

with Judge Barron and his colleagues on the First Circuit in 

Castañeda, 810 F.3d at 19, that the government’s positions 

contradict the intent of Congress expressed through the 

language and structure of the statute.

A.

We first address the government’s argument that we 

should defer to the BIA’s interpretation of § 1226(c)(2)’s 

phrase “an alien described in paragraph (1)” to mean “an 

alien described in subparagraphs (A)–(D) of paragraph (1).” 

See Rojas, 23 I. & N. Dec. at 125 (“We construe the phrasing 

‘an alien described in paragraph (1),’ as including only those 

aliens described in subparagraphs (A) through (D) of section 

[(c)(1)], and as not including the ‘when released’ clause.”). 

Under this interpretation, § 1226(c)(2)’s detention-withoutbond requirement applies to any alien who has committed an 

offense enumerated in § 1226(c)(1), regardless of how long 

after release from criminal custody he or she was taken into 

immigration custody. This interpretation is at odds with the 

statute, which unambiguously links the “when . . . released” 

 11 The Fourth Circuit incorrectly attributed this interpretation to the 

BIA. See Hosh, 680 F.3d at 380 (reasoning that the phrase “when . . . 

released” is ambiguous and deferring to the BIA’s “permissible 

construction”).
PREAP V. JOHNSON 15

custody instruction in § 1226(c)(1) to the without-bond 

instruction in § 1226(c)(2), such that the latter applies only 

after the former is satisfied.

When faced with a question of statutory interpretation, 

our analysis begins “with the text of the statute.” Yokeno v. 

Sekiguchi, 754 F.3d 649, 653 (9th Cir. 2014). The words of 

a statute should be accorded their plain meaning, as 

considered in light of “the particular statutory language at 

issue, as well as the language and design of the statute as a 

whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 

(1988). We cannot look to the statute’s language in isolation 

because “[t]he meaning—or ambiguity—of certain words or 

phrases may only become evident when placed in context.” 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

132 (2000). “If the intent of Congress is clear, that is the end 

of the matter; for the court, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress.” 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837, 842–43 (1984).

Starting with the text, we find that § 1226(c)(2) is 

straightforward. It refers simply to “an alien described in 

paragraph (1),” not to “an alien described in subparagraphs 

(1)(A)–(D).” We must presume that Congress selected its 

language deliberately, thus intending that “an alien described 

in paragraph (1)” is just that—i.e. an alien who committed a 

covered offense and who was taken into immigration 

custody “when . . . released.” See Int’l Ass’n of Machinists 

& Aerospace Workers, Local Lodge 964 v. BF Goodrich 

Aerospace Aerostructurers Grp., 387 F.3d 1046, 1051 (9th 

Cir. 2004) (“[C]ourts must presume that a legislature says in

a statute what it means and means in a statute what it says 

there.” (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 

253–54 (1992))). Certainly, had Congress wanted to refer 
16 PREAP V. JOHNSON

only to “an alien described in subparagraphs (A)–(D),” it 

could have done so. And while we recognize that “Congress 

has not always been consistent in how it refers to other 

subsections in the same statute,” Olmos, 780 F.3d at 1320 

(describing a separate provision where Congress referred to 

“subparagraph (a)” but the context made it obvious that 

Congress was referring to only subparts (i) and (ii)), we 

observe that, unlike the example cited by the Third Circuit 

in Olmos, this section’s context supports, rather than 

contradicts, the plain meaning.12

As mentioned, there are two relevant sources of authority 

for the government’s detention of aliens in removal 

proceedings—§ 1226(a) and § 1226(c). Section 1226(a) 

provides for discretionary detention of any alien in removal 

proceedings, while § 1226(c) provides a limited exception of 

mandatory detention for a specified group of aliens. Thus, 

if the government is not authorized to detain an alien under 

the narrow exception of § 1226(c), it may only do so under 

the general rule of § 1226(a). Critically, however, each of 

these sections includes its own corresponding instructions 

for releasing detained aliens—§ 1226(a) provides for 

possible release on bond, while § 1226(c) forbids any release 

except under special circumstances concerning witness 

protection. There is one important consequence of this 

structure: under both the general detention provision in 

§ 1226(a) and the mandatory detention provision in 

§ 1226(c), the authority to detain and the authority to release 

go hand in hand. That is, an alien detained under § 1226(a) 

 12 We are thus unpersuaded by the government’s argument that there 

is ambiguity in whether the phrase “when the alien is released” modifies 

the noun “alien” or only the verb “take into custody.” Even if we agreed 

that the phrase were ambiguous standing alone, it is not ambiguous 

within the section’s structure and surrounding language.
PREAP V. JOHNSON 17

is clearly subject to the release provisions of § 1226(a), 

whereas one detained under § 1226(c) is subject to the 

release provisions in § 1226(c). Accordingly, if an alien is 

not detained in immigration custody “when . . . released” 

from criminal custody, as required under § 1226(c)(2), then 

the government derives its sole authority to detain that alien 

from § 1226(a)(1), and, as a consequence, it must provide 

the alien with a bond hearing as required under § 1226(a)(2).

The BIA’s interpretation in In re Rojas flouts this 

structure. The BIA held that the “when . . . released” clause 

was “address[ed] . . . to the statutory command that the 

‘Attorney General shall take into custody’ certain categories 

of aliens,” but that it did not define the categories of aliens 

subject to the prohibition on bonded release in § 1226(c)(2). 

In re Rojas, 23 I. & N. Dec. at 121. The BIA thereby held, 

in essence, that the AG can fail to comply with the “when . . . 

released” requirement of § 1226(c)(1)—thereby necessarily 

relying on § 1226(a) for its authority to take custody of an 

alien—but still apply the release conditions of § 1226(c)(2). 

In other words, even if § 1226(c)(1) authorizes the custody 

of only those aliens who are detained “when [they are] 

released” from criminal custody, not those who are detained 

at a later time, the BIA would still apply § 1226(c)(2)’s 

proscription on bonded release from immigration custody. 

This reading simply fails to do justice to the statute’s 

structure. See Castañeda, 810 F.3d at 26 (noting that under 

the BIA’s reading, the statute is “oddly misaligned” because 

it necessarily “de-link[s] the ‘Custody’ directive in 

§ 1226(c)(1) from the bar to ‘Release’ in (c)(2)”).

The headings in § 1226(c) further illustrate this point. 

Section 1226(c) as a whole is entitled “Detention of criminal 

aliens.” This heading conveys to the reader that the section 

provides an exception to the general detention rule of 
18 PREAP V. JOHNSON

§ 1226(a), and that this exception concerns the detention of 

certain criminal aliens. The two paragraphs within the 

section are entitled “Custody” and “Release.” These 

headings inform the reader that the section governs the full 

life cycle of the criminal aliens’ detention, with the first 

paragraph specifying the requirements for taking them into 

custody, and the second specifying the restrictions on their 

release. This structure suggests only one logical conclusion: 

the release provisions of § 1226(c)(2) come into effect only 

after the government takes a criminal alien into custody 

according to § 1226(c)(1). And, correspondingly, if the 

government fails to take an alien into custody according to 

§ 1226(c)(1), then it necessarily may do so only under the 

general detention provision of § 1226(a), and we never reach 

the release restrictions in § 1226(c)(2).

Rojas’s contrary reading, as Judge Barron explained, 

would mean that Congress directed the AG to hold without 

bond aliens “who had never been in criminal custody”—

because with the “when . . . released” clause rendered 

inoperative for purposes of § 1226(c)(2), there would be 

nothing to impose a requirement of the aliens ever having 

been in custody.13 Castañeda, 810 F.3d at 27. At the same 

time, Rojas’s reading would leave the AG “complete 

 13 This effect occurs because, as Judge Barron noted in Castañeda, 

“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.” 

810 F.3d at 26 (alterations in original) (quoting Saysana v. Gillen, 

590 F.3d 7, 14 (1st Cir. 2009)). “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.” Id. at 27. Such aliens can only be taken 

into immigration custody under the discretionary detention provision in 

§ 1226(a).
PREAP V. JOHNSON 19

discretion to decide not to take [such aliens] into 

immigration custody at all.” Id. These incongruous 

consequences further persuade us to reject the BIA’s 

reading.

Notably, neither the BIA nor those circuits that deferred 

to the BIA adequately addressed the structure of the 

relationship between § 1226(a) and § 1226(c). Indeed, the 

BIA and the Second Circuit failed to address it at all. See 

Lora v. Shanahan, 804 F.3d 601, 611 (2d Cir. 2015) 

(deeming it ambiguous whether the “when . . . released” 

clause “is part of the definition of aliens subject to 

mandatory detention” without considering statutory 

context); In re Rojas, 23 I. & N. Dec. at 121–22 (considering 

statutory context but failing to acknowledge the relationship 

between § 1226(a) and § 1226(c)). The Tenth Circuit did 

address it, and even seemed to agree with our conclusion that 

custody must be authorized under paragraph (1) of § 1226(c) 

in order for paragraph (2) to take effect. Olmos, 780 F.3d at 

1321 (recognizing that the authority to detain “arises in 

Paragraph ‘1’” and that “the [AG] must exercise this 

responsibility ‘when the alien is released’”). But, applying 

the loss-of-authority doctrine, that court concluded that the 

government maintains its authority to take custody of an 

alien under § 1226(c)(1) even when it fails to comply with 

the “when . . . released” requirement. Olmos, 780 F.3d at 

1321–22 (“With the alien in the [AG’s] custody under his 

delayed enforcement of § 1226(c)(1), there would be 

nothing odd about § 1226(c)(2)’s restrictions on when the 

alien can be released.”). Finding that the “when . . . released” 

requirement imposed no actual limitations on the 

government, the Tenth Circuit thus concluded that the BIA’s 

interpretation—reading out the “when . . . released” 

requirement—was reasonable. Id. We disagree. As we later 

explain, the loss-of-authority doctrine does not apply to 
20 PREAP V. JOHNSON

§ 1226(c). And absent this doctrine, we are left with the 

conclusion that the AG must comply with § 1226(c)(1), 

including the “when . . . released” requirement, before it can 

apply § 1226(c)(2).

In sum, we conclude that paragraph (2)’s limitations on 

release unambiguously depend upon paragraph (1)’s 

mandate to take custody. “An alien described in paragraph 

(1)” is therefore one who is detained according to the 

requirements of paragraph (1). These requirements include 

the mandate that the government take the alien into custody 

“when . . . released.” The BIA’s interpretation to the 

contrary is impermissible.14

B.

We must next decide whether the AG is in compliance 

with § 1226(c)(1)’s custody mandate—and thus 

§ 1226(c)(2)’s limitations on release apply—even if the AG 

takes an alien into custody after substantial time has passed 

since the alien’s release from criminal custody. Plaintiffs 

argue that § 1226(c)(1)’s mandate requiring the AG to detain 

criminal aliens “when [they are] released” from criminal 

custody means that they must be taken into custody promptly

after release, not years later, as were the named Plaintiffs 

here. The government, on the other hand, argues that the 

phrase “when . . . released” is ambiguous, supporting either 

Plaintiffs’ reading or a broader reading requiring mandatory 

detention of any criminal alien arrested by the AG at any 

point after release from criminal custody. The government’s 

 14 “Because the statutory language is unambiguous, we end our inquiry 

at Chevron’s first step, and need not reach the question [of] whether the 

BIA’s approach is based on a permissible construction of the statute.” 

Aragon-Salazar v. Holder, 769 F.3d 699, 706 (9th Cir. 2014).
PREAP V. JOHNSON 21

argument wrongly assumes that the BIA had so construed 

“when . . . released.” On the contrary, the BIA explicitly 

stated that “[t]he statute does direct the [AG] to take custody 

of aliens immediately upon their release from criminal 

confinement.” Rojas, 23 I. & N. Dec. at 122 (emphasis 

added). And even if the BIA had construed the phrase not to 

require immediate confinement, the statute would foreclose 

that construction because “when . . . released” 

unambiguously requires promptness.

Again, we start with the plain language: “The Attorney 

General shall take into custody any alien who [commits an 

enumerated offense] when the alien is released [from 

criminal custody].” 8 U.S.C. § 1226(c). As Judge Barron 

observed, the first thing that leaps out is that “Congress 

chose a word, ‘when,’ that naturally conveys some degree of 

immediacy as opposed to a purely conditional word, such as 

‘if.’” Castañeda, 810 F.3d at 37 (citation omitted). Of 

course, the word “when” has multiple dictionary 

definitions.15 But looking to context, which of these 

meanings is the intended one is clear. The word “when” 

used in a command such as this one requires prompt action. 

Consider a teacher’s common instruction to stop writing 

when the exam ends. There is no doubt that such an 

instruction requires the student to immediately stop writing 

 15 See, e.g. Black’s Law Dictionary 1842 (3d ed. 1933) (defining 

“when” alternatively as “[i]mmediately after; as soon as” and as “[i]n 

case of; on condition that; provided; if”); see also Hosh, 680 F.3d at 379–

80 (reasoning that the term “when” “can be read, on one hand, to refer to 

‘action or activity occurring at the time that or as soon as other action 

has ceased or begun’” or “[o]n the other hand, . . . to mean the temporally 

broader ‘at or during [which] time’” (first quoting Waffi v. Louiselle, 

527 F. Supp. 2d 480, 488 (E.D. Va. 2007), then quoting 

Free Merriam-Webster Dictionary, http://www.merriam-webster.com/

dictionary/when)).
22 PREAP V. JOHNSON

at the end of the exam period. Or as one district court noted, 

“if a wife tells her husband to pick up the kids when they 

finish school, implicit in this command . . . is the expectation 

that the husband is waiting at the moment” school ends. 

Sanchez-Penunuri v. Longshore, 7 F. Supp. 3d 1136, 1155 

(D. Colo. 2013); see also Khoury v. Asher, 3 F. Supp. 3d 877, 

887 (W.D. Wash. 2014) (“A mandate is meaningless if those 

subject to it can carry it out whenever they please.”). 

Similarly, the use of the phrase “when . . . released,” when 

paired with the directive to detain, unambiguously requires 

detention with “some degree of immediacy.” Hosh v. 

Lucero, 680 F.3d 375, 381 (4th Cir. 2012).

Indeed, “[i]f 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.” Castañeda, 810 F.3d at 38 (citing 

8 U.S.C. § 1231(a)(5) (“[T]he alien shall be removed under 

the prior order at any time after the reentry.” (emphasis 

added)); see also Quezada-Bucio v. Ridge, 317 F. Supp. 2d 

1221, 1230 (W.D. Wash. 2004) (noting that Congress 

“easily could have used the language ‘after the alien is 

released,’ ‘regardless of when the alien is released,’ or other 

words to that effect”). But instead Congress chose words 

that signal an expectation of immediate action. See Jones v. 

United States, 527 U.S. 373, 389 (1999) (“Statutory 

language must be read in context [as] a phrase ‘gathers 

meaning from the words around it.’” (quoting Jarecki v. G. 

D. Searle & Co., 367 U.S. 303, 307 (1961))). This word 

choice must be given its due weight.

Moreover, unlike the government’s interpretation, our 

reading is consistent with Congress’s purposes in enacting 

the mandatory detention provision—to address heightened 
PREAP V. JOHNSON 23

risks of flight and dangerousness associated with aliens who 

commit certain crimes, which are serious enough to give rise 

to criminal custody. See Demore, 538 U.S. at 518–19 

(describing evidence before Congress). These purposes are 

ill-served when the critical link between criminal detention 

and immigration detention is broken and the alien is set free 

for long stretches of time. Congress’s concerns over flight 

and dangerousness are most pronounced at the point when 

the criminal alien is released. Consequently, we can be 

certain that Congress did not intend to authorize delays in 

the detention of these criminal aliens. And correspondingly, 

without considering the aliens’ conduct in any intervening 

period of freedom, it is impossible to conclude that the risks 

that once justified mandatory detention are still present. 

These considerations are prudently reflected in Congress’s 

decision that these individuals must be detained “when . . . 

released,” and that if they aren’t, the AG may detain them 

only if warranted under the general detention provision of 

8 U.S.C. § 1226(a), upon a bond hearing during which an 

individualized assessment of risks is conducted. We 

therefore conclude that the phrase “when . . . released” 

connotes some degree of immediacy.

C.

Finally, we turn to the government’s argument that even 

if § 1226(c)(1) unambiguously requires prompt detention, 

we should nonetheless uphold the AG’s authority to detain 

without bond an alien who committed a covered offense 

even when the AG has violated the mandate of § 1226(c)(1). 

The government points to a line of cases holding 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.” 

Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003) 
24 PREAP V. JOHNSON

(quoting United States v. James Daniel Good Real Property, 

510 U.S. 43, 63 (1993)); see also id. at 158 (“Nor, since 

Brock [v. Pierce County, 476 U.S. 253 (1986)], have we ever 

construed a provision that the government ‘shall’ act within 

a specified time, without more, as a jurisdictional limit 

precluding action later.”); United States v. Nashville, C & St. 

L. Ry., 118 U.S. 120, 125 (1886); United States v. Dolan, 

571 F.3d 1022, 1027 (10th Cir. 2009). Under this “loss-ofauthority” line of cases, the government’s argument goes, 

the AG’s failure to timely take into custody a criminal alien 

in no way affects her ability to act pursuant to the mandatory 

detention provision of § 1226(c)(2). Several circuits have 

agreed. See Sylvain, 714 F.3d at 157; Lora, 804 F.3d at 612–

13; Olmos, 780 F.3d at 1324–26.

The courts adopting this reasoning rely on United States 

v. Montalvo-Murillo, 495 U.S. 711 (1990), in which the 

Supreme Court interpreted a provision of the Bail Reform 

Act that required judicial officers to hold a bond hearing 

“immediately upon the [defendant]’s first appearance before 

the judicial officer.” 18 U.S.C. § 3142(f)(2). MontalvoMurillo didn’t receive a timely hearing under this provision, 

and the district court released him from custody. The 

Supreme Court reversed, holding that “a failure to comply 

with the first appearance requirement does not defeat the 

government’s authority to seek detention of the person 

charged.” 495 U.S. at 717. The Court noted that nowhere 

did the statute provide for the release of pretrial detainees as 

a remedy for the failure by judicial officers to provide 

prompt hearings. Id. And it concluded that “[a]utomatic 

release contravene[d] the object of the statute, to provide fair 

bail procedures while protecting the safety of the public and 

assuring the appearance . . . of defendants . . . .” Id. at 719. 

To hold otherwise, the Court reasoned, would “bestow upon 

the defendant a windfall” and impose on the public “a severe 
PREAP V. JOHNSON 25

penalty” by “mandating release of possibly dangerous 

defendants every time some deviation” from the statute 

occurred. Id. at 720. Looking to this decision, our sister 

circuits have treated Montalvo-Murillo as a “close[] analog” 

to the dispute over § 1226(c)’s limitations. Sylvain, 714 F.3d 

at 158. We find, however, that Montalvo-Murillo is readily 

distinguishable.

Critically, unlike in Montalvo-Murillo, the government 

here invokes the loss-of-authority doctrine to justify 

extending a statutory provision that in fact curtails, rather 

than expands, the government’s discretionary authority. See 

Farrin R. Anello, Due Process and Temporal Limits on 

Mandatory Immigration Detention, 65 Hastings L. J. 363, 

367 (2014) (“The [mandatory detention provision] strips the 

immigration judge of her power to conduct a bond hearing 

and decide whether the individual poses any danger or flight 

risk, and likewise precludes DHS from making discretionary 

judgments about whether detention is appropriate.”).16 

Indeed, the sole practical effect of the district court’s 

decision in this case is to reinstate the government’s general 

authority, under § 1226(a), to decline to detain, or to release 

on bond, those criminal aliens who are not timely detained 

under § 1226(c). In short, we decline to apply the loss-ofauthority doctrine where, as here, there is no loss of 

authority.

 16 Congress’s purposes in enacting the provision further demonstrate 

its desire to curtail the authority of the immigration judge and DHS to 

release recently incarcerated criminals from immigration custody. See 

Demore v. Kim, 538 U.S. 510, 518-19 (2003) (noting Congress’s 

concerns that immigration authorities had a “near-total inability to 

remove deportable criminal aliens” and often made detention decisions 

on the basis of “funding and detention space”).
26 PREAP V. JOHNSON

Moreover, unlike the district court’s ruling in MontalvoMurillo, our holding does not craft a new remedy 

inconsistent with the statutory scheme. Whereas in 

Montalvo-Murillo the statute at issue did not identify a 

remedy for a delayed hearing, see United States v. MontalvoMurillo, 876 F.2d 826, 831 (10th Cir. 1989) (per curiam) 

(noting that “Congress did not provide . . . the remedy” for 

a violation of § 3142(f)), overruled by Montalvo-Murillo, 

495 U.S. at 722), here the statutory structure makes clear 

precisely what occurs in the absence of prompt detention 

under 8 U.S.C. § 1226(c): the general detention provision, 

8 U.S.C. § 1226(a), applies. Far from imposing a judiciallycreated remedy for untimely detention, we are merely 

holding that under the statute, the conditions for the 

mandatory detention exception are not met when detention 

is too long delayed. See Castañeda, 810 F.3d at 40–41 

(distinguishing several cases where courts improperly 

fashioned their own sanctions).

We do not share the Third Circuit’s concern that failing 

to apply the loss-of-authority doctrine “would lead to an 

outcome contrary to the statute’s design: a dangerous alien 

would be eligible for a hearing—which could lead to his 

release—merely because an official missed the deadline.” 

Sylvain, 714 F.3d at 160. Congress’s design of protecting the 

public by detaining criminal aliens is undoubtedly premised 

on the notion that recently released criminal aliens may be 

presumed a risk. Such a presumption carries considerably 

less force when these aliens live free and productive lives 

after serving their criminal sentences. See Saysana v. Gillen, 

590 F.3d 7, 17–18 (1st Cir. 2009) (“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.”). 

Indeed, the imposition of robotic detention procedures in 
PREAP V. JOHNSON 27

such cases not only smacks of injustice, but also drains 

scarce detention resources that should be reserved for those 

aliens who pose the greatest risks.

We therefore hold that the mandatory detention 

provision of 8 U.S.C. § 1226(c) applies only to those 

criminal aliens who are detained promptly after their release 

from criminal custody, not to those detained long after.

IV.

In so holding, we are not suggesting that the mandate to 

detain “when . . . released” necessarily requires detention to 

occur at the exact moment an alien leaves criminal custody. 

The plain meaning of “when . . . released” in this context 

suggests that apprehension must occur with a reasonable 

degree of immediacy. Accord Hosh, 680 F.3d at 381 (“[W]e 

agree that Congress’s command . . . connotes some degree 

of immediacy . . . .”); Rojas, 23 I. & N. Dec. at 122 (“The 

statute does direct the [AG] to take custody of aliens 

immediately upon their release from criminal 

confinement.”). Thus, 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.

This appeal, however, does not present the question 

exactly how quickly detention must occur to satisfy the 

“when . . . released” requirement. The class was defined as 

those who were not “immediately detained” but were still 

taken into mandatory custody, and the government did not 

challenge the class definition on the ground that it required 

further clarification as to the meaning of “immediately.” 

Nor did the government appeal class certification on the 

ground that the named class members were not typical of the 

class as a whole—even though the named Plaintiffs spent 
28 PREAP V. JOHNSON

years in their home communities after completing their 

criminal sentences, whereas some class members 

presumably were released for shorter times. We thus need 

not decide for purposes of the instant appeal 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. The district court granted preliminary 

injunctive relief to a class of aliens who were not 

“immediately detained” when released from criminal 

custody, and that grant of relief accords with our 

interpretation of the statutory requirements.

* * *

Under the plain language of 8 U.S.C. § 1226(c), the 

government may detain without a bond hearing only those 

criminal aliens it takes into immigration custody promptly

upon their release from triggering criminal custody.

AFFIRMED.