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, 
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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., 
- 3 - 

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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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 
- 6 - 

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. 
- 7 - 

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)], 
- 8 - 

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 . . . . 
- 9 - 

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. 
- 10 - 

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). 
- 11 - 

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. 
- 12 - 

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. 
- 13 - 

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 
- 14 - 

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). 
- 15 - 

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. 
- 16 - 

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. 
- 17 - 

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 
- 18 - 

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 
- 19 - 

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). 
- 20 - 

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. 
- 21 - 

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. 
- 22 - 

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 
- 23 - 

(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. 
- 24 - 

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. 
- 25 - 

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. 
- 26 - 

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). 
- 27 - 

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. 104-

208, 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. 
- 28 - 

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. 
- 29 - 

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 
- 30 - 

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 
- 31 - 

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). 
- 32 - 

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 
- 33 - 

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-tofinish 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) 
- 34 - 

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. 
- 35 - 

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 
- 36 - 

"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 
- 37 - 

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). 
- 38 - 

"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. 
- 39 - 

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). 
- 40 - 

directive and the bar to bonded release to be a linked one. After 

all, courts were consistently interpreting that relationship postAEDPA 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. 
- 41 - 

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. 
- 42 - 

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 
- 43 - 

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. 
- 44 - 

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). 
- 45 - 

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 
- 46 - 

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 
- 47 - 

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"). 
- 48 - 

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. 
- 49 - 

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 
- 50 - 

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 
- 51 - 

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, 2492-

93 (2015). 
- 52 - 

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). 
- 53 - 

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 
- 54 - 

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. 
- 55 - 

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. 
- 56 - 

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 
- 57 - 

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. 
- 58 - 

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. 
- 59 - 

("[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). 
- 60 - 

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.
- 61 - 

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 
- 62 - 

(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). 

 
- 63 - 

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 
- 64 - 

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 
- 65 - 

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. 

 
- 66 - 

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 
- 67 - 

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). 
- 68 - 

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). 
- 69 - 

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, 
- 70 - 

(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 
- 71 - 

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 
- 72 - 

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 
- 73 - 

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 
- 74 - 

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, 
- 75 - 

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 
- 76 - 

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. 
- 77 - 

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 
- 78 - 

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 
- 79 - 

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," 
- 80 - 

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 
- 81 - 

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 
- 82 - 

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 
- 83 - 

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). 
- 84 - 

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). 
- 85 - 

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). 
- 86 - 

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 3009-

586. 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. 
- 87 - 

"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). 
- 88 - 

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. 
- 89 - 

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 
- 90 - 

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 
- 91 - 

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 norelease 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. 102-

232, 105 Stat. 1733, 1751 (effective as if included in the 1990 

Act). 
- 92 - 

(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 
- 93 - 

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. 
- 94 - 

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 

 48 Not even the dissent in Rojas cites Matter of Eden. 
- 95 - 

'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 
- 96 - 

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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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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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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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. 
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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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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. 
- 106 - 

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. 
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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).