FILED

United States Court of Appeals

Tenth Circuit

March 24, 2015

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MANUEL OLMOS,

 Petitioner-Appellee,

v.

ERIC H. HOLDER, JR., United States

Attorney General,

Respondent-Appellant.

ASIAN AMERICANS ADVANCING

JUSTICE; ASIAN AMERICANS

ADVANCING JUSTICE-ASIAN LAW

CAUCUS; DETENTION WATCH

NETWORK; FAMILIES FOR

FREEDOM; IMMIGRANT RIGHTS

CLINIC; IMMIGRATION

EQUALITY; THE ROCKY

MOUNTAIN IMMIGRANT

ADVOCACY NETWORK; THE

UNIVERSITY OF COLORADO

BOULDER LAW SCHOOL

CRIMINAL/IMMIGRATION

DEFENSE CLINIC; THE

UNIVERSITY OF DENVER STURM

COLLEGE OF LAW HYBRID

IMMIGRATION PROGRAM,

 Amici Curiae.

 No. 14-1085

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Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:13-CV-03158-RM)

Hans H. Chen, Trial Attorney, U.S. Department of Justice, Civil Division, Office

of Immigration Litigation, Washington, D.C. (Stuart F. Delery, Assistant Attorney

General, U.S. Department of Justice, Civil Division, Colin A. Kisor, Acting

Director, Office of Immigration Litigation, District Court Section, Jeffrey S.

Robins, Assistant Director, Office of Immigration Litigation, Washington, D.C.,

with him on the briefs), for Respondent-Appellant.

Michael K. T. Tan, American Civil Liberties Foundation Immigrants’ Rights

Project, San Francisco, California (Eunice Lee, American Civil Liberties

Foundation Immigrants’ Rights Project, San Francisco, California, Judy

Rabinovitz, American Civil Liberties Foundation Immigrants’ Rights Project,

New York, New York, and Mark Silverstein, ACLU of Colorado, Denver,

Colorado, with him on the brief), for Petitioner-Appellee.

Jon Streeter, Stacy Chen, and Theresa H. Nguyen, Keker & Van Nest LLP, San

Francisco, California, filed an Amici Curiae brief for Asian Americans Advancing

Justice and AAJC and Asian Americans Advancing Justice-Asian Law Caucus.

Alina Das, Washington Square Legal Services, Inc., Immigrant Rights Clinic,

New York, New York, filed an Amici Curiae brief for Detention Watch Network,

Families for Freedom, Immigrant Rights Clinic, Immigration Equality, The Rocky

Mountain Immigrant Advocacy Network, The University of Colorado Boulder

Law School Criminal/Immigration Defense Clinic, and the University of Denver

Sturm College of Law Hybrid Immigration Program.

Before BRISCOE, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

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For aliens, a criminal conviction can often result in removal (deportation).

When an alien is convicted and the federal government seeks removal, an

immigration judge can ordinarily conduct a bond hearing to decide whether the

alien should be released or detained while he waits for his removal hearing. But,

in 8 U.S.C. § 1226(c), Congress has required detention (without a bond hearing)

for some categories of aliens. These aliens must be taken into custody by the

United States Attorney General when they are released in their criminal cases.

Against the backdrop of this statutory framework, Mr. Manuel Olmos (a

citizen of Mexico) was convicted in state court on charges involving identity

theft, providing false information to a pawnbroker, and forgery of a government

document. Mr. Olmos obtained probation, but was taken into federal custody six

days later on the ground that his conviction triggered mandatory detention.

Mr. Olmos sought a writ of habeas corpus, arguing that he was entitled to a

bond hearing, where he could seek release while his removal hearing was

pending. The district court agreed with Mr. Olmos and granted a writ of habeas

corpus, holding that he was entitled to a bond hearing. At the eventual bond

hearing, Mr. Olmos was released on a $12,000 bond.

The government contends that the Attorney General had a statutory duty to

detain Mr. Olmos (without a bond hearing) notwithstanding his six-day gap in

custody. We agree with the government based on (1) deference to the way the

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Board of Immigration Appeals has interpreted § 1226(c) and (2) the continued

duty to impose mandatory detention even if the Attorney General had waited too

long to take custody of Mr. Olmos. For both reasons, we reverse.

I. Jurisdiction

Though Mr. Olmos does not challenge jurisdiction, we must address the

issue sua sponte. Weber v. GE Grp. Life Assurance Co., 541 F.3d 1002, 1009

(10th Cir. 2008).

We would lack jurisdiction if the Attorney General had discretion in

applying 8 U.S.C. § 1226. See 8 U.S.C. § 1226(e) (2012). But, Mr. Olmos is not

challenging a discretionary decision, for the Attorney General has disclaimed any

discretion in mandatory detention. Thus, we have jurisdiction over the

government’s appeal. See Sylvain v. Attorney Gen., 714 F.3d 150, 155 (3d Cir.

2013) (“Nothing in 8 U.S.C. § 1226(e) prevents us from deciding whether the

immigration officials had statutory authority to impose mandatory detention.”).

II. Statutory Interpretation (the Statutory Reference to “Paragraph (1)”)

We must exercise this jurisdiction by deciding the extent of the Attorney

General’s authority. This authority is governed by two parts of 8 U.S.C.

§ 1226(c), which are entitled “Custody” and “Release.” The first part (entitled

“Custody”) states that the Attorney General must take custody of certain aliens

“when . . . released.” 8 U.S.C. § 1226(c)(1) (2012). The second part (entitled

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“Release”) restricts the Attorney General’s authority to release aliens described in

the first part. 8 U.S.C. § 1226(c)(2) (2012).

We must decide whether this restriction applies when there is a gap

between expiration of the criminal sentence and confinement by the Attorney

General. Mr. Olmos states that the restriction does not apply when there is a gap

in custody; the government states that the restriction applies regardless of when

the Attorney General takes the alien into custody.

A. Chevron Analysis

The Board of Immigration Appeals agreed with the government’s

interpretation, concluding that the statutory restriction on release applies even

when there is a gap in custody. In re Rojas, 23 I. & N. Dec. 117, 125 (B.I.A.

2001). To decide whether we should defer to the Board, we engage in a two-part

inquiry under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837 (1984). The first step is to determine “whether Congress has directly spoken”

on the issue. Chevron, U.S.A., Inc., 467 U.S. at 842. If Congress has directly

spoken, we do not accord any deference to the Board’s interpretation. Id. at 842-

43. But, if Congress has not directly spoken on the issue, we must decide if the

Board’s interpretation is permissible. Id. at 843.

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B. The First Step of Chevron: Whether Congress Has Directly

Spoken

To determine whether Congress has directly spoken, we consider the

statutory text and other clues regarding Congress’s meaning.

1. The Statutory Text

We begin with the statutory language:

(1) Custody

The Attorney General shall take into custody any alien who–

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

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

(B) is deportable by reason of having committed any offense covered

in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

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

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

a term of imprisonment of at least 1 year, or

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

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

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

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

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

offense.

(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

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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.

8 U.S.C. § 1226(c) (2012).

The text makes clear that the Attorney General must take custody of aliens

in four categories (“A” through “D” of Paragraph “1”) when they are released.

Mr. Olmos argues that the Attorney General must exercise this statutory

obligation immediately upon release from confinement in the criminal case. For

the sake of argument, we may assume that Mr. Olmos is correct.

If Mr. Olmos is correct, he should have been kept in continuous custody,

with the Attorney General taking custody immediately upon release in the state

criminal case. That did not happen, for Mr. Olmos had six days of freedom before

being taken into the Attorney General’s custody. Thus, we must ask: Did the

Attorney General lose this power through his six-day delay?

To answer this question, we turn to the statutory text. It provides the

Attorney General with limited power to release aliens, stating: “The Attorney

General may release an alien described in paragraph (1) only if” certain

conditions are met. 8 U.S.C. § 1226(c)(2) (2012). What does it mean to be “an

alien described in paragraph (1)”? Mr. Olmos states that this phrase refers to

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aliens in Paragraphs “A” through “D” only if they are taken into custody

immediately upon release in their criminal cases; the government states that the

phrase refers to aliens in Paragraphs “A” through “D” regardless of when they are

taken into the Attorney General’s custody.

Both interpretations are plausible because the statutory text is ambiguous in

its reference to “an alien described in paragraph (1).” Id. This phrase may refer

solely to aliens in Paragraphs “A” through “D,” as the government says. Or, the

phrase may refer to these aliens only when they are taken into immediate custody,

as Mr. Olmos says. The answer lies in what it means to be “an alien described in

paragraph (1).” Id. To interpret this phrase, we must go beyond the statutory text.

2. Other Clues Regarding the Correct Interpretation

To do so, we use “traditional tools of statutory construction.” Anderson v.

U.S. Dep’t of Labor, 422 F.3d 1155, 1180 (10th Cir. 2005). In this case, the

parties point to tools of statutory construction involving grammatical structure,

legislative history, generality of the statutory cross-reference to “paragraph (1),”

and case law on the interpretation of “flush language.” These tools do not remove

the existing ambiguity in the statute, for none definitively answer whether the

reference to “paragraph (1)” incorporates the taking of custody “when the alien is

released.”

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a. Grammatical Structure

The government points to the grammatical structure of § 1226(c), requiring

us to interpret two phrases:

1. “when the alien is released,” and

2. “an alien described in paragraph (1).” 

The government states that the first phrase (“when the alien is released”) is an

adverbial phrase, which must modify a verb rather than a noun. Thus, according

to the government, a grammarian could reasonably conclude that the noun phrase

(“an alien described in paragraph (1)”) could not be modified by an adverbial

clause (“when the alien is released”). But, this argument begs the question: The

phrase “when the alien is released” can be adjectival or adverbial, depending on

its function in the sentence. As a result, the grammar does not remove the

inherent ambiguity in § 1226(c)(1).

This section contains three parts:

1. the opening phrase (“The Attorney General shall take into custody

any alien who–”)

2. the middle part (“A” through “D,” referring to the reasons that a

given alien might be considered “inadmissible” or “deportable”)

3. the end phrase (“when the alien is released” without regard to the

form of release or potential reincarceration for the same offense). 

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The end phrase can modify (1) the opening phrase (by describing the aliens who

are to be taken into custody), or (2) the middle part (by describing the aliens

considered inadmissible or deportable).

If the end phrase simply modifies the opening phrase, the government’s

interpretation would be correct. But, this is not the only possible reading: The end

phrase can also be read as modifying the middle part (by clarifying the aliens who

are identified in Paragraphs “A” through “D”). Under this interpretation, Mr.

Olmos would prevail because aliens would be described in Paragraph “1” only if

they were immediately taken into custody upon release in their criminal cases.

Because either interpretation is plausible from the text alone, the government’s

grammatical characterization does not remove the ambiguity.

b. Legislative History

The government relies not only on the grammar, but also on the legislative

history. In adopting § 1226(c), Congress sought to reduce the risk of

nonappearance for aliens who had committed crimes. See S. Rep. No. 104-48, at

23 (1995) (“Many criminal aliens who are released pending their deportation

never appear for their deportation proceedings.”). Thus, the government argues

that Congress would have preferred reincarceration to ensure appearance at the

removal hearing — regardless of whether there had been a gap in custody.

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But, again, the government’s reliance on congressional intent does not

remove the ambiguity. Congress did not impose mandatory detention for all aliens

guilty of crimes. Instead, Congress drew lines, imposing mandatory detention for

some aliens and not for others. Congress could conceivably have been less

concerned about the appearance of aliens who had been released and had not

taken the opportunity to flee. Thus, the government’s reliance on congressional

intent does not remove the inherent ambiguity: Congress might or might not have

wanted bond hearings for aliens like Mr. Olmos who had not fled after obtaining

release.

c. Generality in the Statutory Cross-Reference to “Paragraph (1)”

Mr. Olmos points to other statutory clues. For example, he emphasizes that

Congress referred to aliens “described in paragraph (1)” and that this paragraph

went beyond identifying aliens considered “inadmissible” or “deportable.” The

paragraph also directed the Attorney General to take custody of these aliens (the

opening phrase) and told him when to do that (“when the alien is released”). Mr.

Olmos argues that when Congress referred to aliens “described in paragraph (1),”

Congress had to be referring to the entirety of Paragraph “1.” And, the entirety of

Paragraph “1” contemplated continuous confinement of aliens identified in “A”

through “D.”

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To Mr. Olmos, the meaning is clear: If Congress wanted to focus

exclusively on aliens identified in Paragraphs “A” through “D,” the statute would

have referred to aliens “described in paragraph (1)(A)-(D)” instead of aliens

“described in paragraph (1).” In fact, Congress elsewhere used this kind of

specific citation form when it intended to refer to a specific subsection. For

example, in § 1226(d)(2), Congress referred to “[t]he record under paragraph

(1)(C).” Mr. Olmos points out that Congress could easily have used the same

specific form of citation (referring to aliens “described in paragraph (1)(A)-(D)”)

if the intent was to focus on “A” through “D” regardless of when the aliens had

been released.

But, the government points out that Congress has not always been

consistent in how it refers to other subsections in the same statute. For example,

in 8 U.S.C. § 1153(b)(5)(B)(i), Congress referred broadly to “subparagraph (A)”

even though the context showed that Congress was referring to only two subparts

of “subparagraph (A)”: (i) and (ii). Thus, Congress’s reference to “paragraph

(1)”—rather than “paragraph (1)(A)-(D)”—might not have reflected an intent to

incorporate the end phrase (“when the alien is released”).

d. The Interpretation of “Flush Language”

Mr. Olmos also points to case law on how to interpret “flush language.” As

noted above, § 1226(c)(1) consists of three parts: an opening phrase (directing the

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Attorney General to take custody of aliens), the middle part (identifying the aliens

who are to be taken into custody), and the end phrase (“when the alien is

released”). The first and third parts of § 1226(c)(1) are considered “flush,”

meaning they begin at the left margin on the page. The middle part (Paragraphs

“A” through “D”) consists of “inset clauses,” meaning they are indented. As Mr.

Olmos points out, some courts state that “flush” language is intended to refer to

the entire section. See Snowa v. Comm’r of Internal Revenue, 123 F.3d 190, 196

n.10 (4th Cir. 1997); Reser v. Comm’r of Internal Revenue, 112 F.3d 1258, 1262

n.10 (5th Cir. 1997); Sherwin-Williams Co. Emp. Health Plan Trust v. Comm’r of

Internal Revenue, 330 F.3d 449, 454 n.4 (6th Cir. 2003).

But, these cases do not remove the ambiguity in whether the flush language

(“when the alien is released”) was intended to qualify the list of aliens identified

in “A” through “D.” As noted above, there are two flush clauses in § 1226(c)(1).

Mr. Olmos has focused on the second flush clause (“when the alien is released”).

But, there is also another “flush clause”: “The Attorney General shall take into

custody any alien who–.” No one suggests that this clause could be used to

describe the aliens listed in “A” through “D.”

The two “flush” clauses might simply be read as two parts of a cohesive

sentence. The sentence would read: “The Attorney General shall take into custody

any alien who–[is identified in ‘A’ through ‘D’] when the alien is released . . . .”

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8 U.S.C. § 1226(c)(1) (2012). Thus, case law on the use of “flush language” does

not remove the inherent ambiguity in the reference to aliens “described in

paragraph (1).”

e. Canon of Constitutional Avoidance

Mr. Olmos argues that § 1226(c) is unambiguous because the Board’s

interpretation would create serious constitutional questions. This argument does

not advance the inquiry at step one of Chevron.

The problem with the argument is that it reflects a misapplication of the

canon of constitutional avoidance. This canon provides that when a particular

construction would raise serious constitutional problems, the court will avoid that

construction unless doing so would plainly conflict with Congress’s intent.

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 575 (1988). As Mr. Olmos states, this canon provides “‘a tool for

choosing between competing plausible interpretations of a statutory text.’” Clark

v. Martinez, 543 U.S. 371, 381 (2005), quoted in Appellee’s Resp. Br. at 34.

But, at the first step of Chevron, we examine solely “whether Congress has

directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Thus, the canon of

constitutional avoidance does not bear on our inquiry at step one. See Warger v.

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Shauers, __ U.S. __, 135 S. Ct. 521, 529 (2014) (stating that the canon of

constitutional avoidance applies only if the statute is ambiguous).

f. Rule of Lenity

According to Mr. Olmos, the rule of lenity suggests that the statute is

unambiguous. We disagree.

Mr. Olmos invokes lenity at step one, where we are determining only

whether Congress has directly spoken. See Appellee’s Resp. Br. at 33-37. But, the

rule of lenity applies only if the statute is grievously ambiguous. Robers v. United

States, __ U.S. __, 134 S. Ct. 1854, 1859 (2014). Section 1226(c) can be

grievously ambiguous only if Congress failed to directly speak on the issue. Thus,

Mr. Olmos’s invocation of lenity at step one is self-defeating: Lenity can apply

only if the government has satisfied Chevron’s first step by showing ambiguity in

the statute.

g. Interplay Between Paragraphs “1” & “2”

Mr. Olmos also points to the structure of Paragraphs “1” and “2” in

§ 1226(c). Paragraph “1” is entitled “Custody”; Paragraph “2” is entitled

“Release.” Based on these titles, Mr. Olmos argues that it would be odd if the

rules of custody were to be found in Paragraph “2,” where one would expect to

find the rules governing release. Mr. Olmos adds that this oddity is heightened by

the language in Paragraph “2,” which addresses limitations on the Attorney

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General’s power to “release an alien described in paragraph (1).” 8 U.S.C.

§ 1226(c)(2) (2012). An alien can be released only if he is already in custody.

Thus, Mr. Olmos argues that Paragraph “2” cannot serve as the sole provision

authorizing the Attorney General to take an alien into custody. But, it isn’t.

That authority also arises in Paragraph “1.” There the statute requires the

Attorney General to take aliens into custody if they are covered by categories “A”

through “D.” 8 U.S.C. § 1226(c)(1) (2012). As Mr. Olmos points out, the

Attorney General must exercise this responsibility “when the alien is released.”

Id. But, what happens when the Attorney General fails to take aliens into custody

when they are released? The government argues that apart from § 1226(c)(2), the

Attorney General had an ongoing duty to take custody.

That interpretation is plausible,1

 making Mr. Olmos’s argument irrelevant

because the authority for mandatory detention would arise under § 1226(c)(1), not

§ 1226(c)(2). With the alien in the Attorney General’s custody under his delayed

enforcement of § 1226(c)(1), there would be nothing odd about § 1226(c)(2)’s

restrictions on when the alien can be released. Thus, Mr. Olmos’s reliance on the

structure and titles in § 1226(c) does not remove the ambiguity on whether the

reference to Paragraph “1” incorporates the phrase “when the alien is released.”

1 E.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-59 (2003); Brock v.

Pierce Cnty. 476 U.S. 253, 260 (1986).

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h. Summary

The text, the statutory clues, and canons of interpretation do not

definitively clarify the meaning of § 1226(c). Even with the statutory text, clues,

and canons, a reader cannot tell from the text alone whether aliens remain subject

to mandatory detention after a gap in custody.

C. The Second Step of Chevron: Whether the Board’s Statutory

Interpretation Was Permissible

Because Congress has not directly spoken on the issue, we consider how

the Board of Immigration Appeals interpreted the statute and decide whether this

interpretation was permissible. See p. 5, above. The Board’s interpretation is

permissible unless it is “arbitrary, capricious, or manifestly contrary to”

§ 1226(c). Berneike v. Citimortgage, Inc., 708 F.3d 1141, 1148 (10th Cir. 2013).

As noted above, the Board held in In re Rojas, 23 I. & N. Dec. 117, 125

(B.I.A. 2001) that § 1226(c) required mandatory detention of aliens listed in “A”

through “D” regardless of gaps in confinement. This interpretation is permissible.

1. The Alleged Irrationality of Rojas

Mr. Olmos and amici curiae contend that Rojas leads to unjust, irrational

results, uprooting aliens from the community when they are the family’s sole

source of income, eligible for relief from removal, and tied to family in the

United States. This contention overlooks Congress’s policy determination that

aliens in certain categories (Paragraphs “A” through “D”) must be detained

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without a bond hearing even when they are the family’s sole source of income,

are eligible for relief from removal, and have family ties in the United States. The

Board of Immigration Appeals is not free to second-guess Congress’s policy

judgment; the Board’s sole task was to determine whether Congress had intended

to exempt aliens from mandatory detention when the Attorney General was slow

to act. The alleged hardships flow from Congress’s policy judgment, not from the

Board’s interpretation of the statute in Rojas.

2. The Rule of Lenity and Canon of Constitutional Avoidance

As discussed above, Mr. Olmos argued at step one of Chevron that § 1226

is unambiguous based on the rule of lenity and the canon of constitutional

avoidance. These arguments are misguided because lenity and constitutional

avoidance come into play only if the statute is ambiguous. Though Mr. Olmos

does not address lenity or constitutional avoidance at step two of Chevron, we do

so to ensure the Board’s interpretation would not run afoul of well accepted

principles of statutory interpretation. They wouldn’t.

a. The Canon of Constitutional Avoidance

The canon of constitutional avoidance would not preclude the Board’s

interpretation of § 1226. As noted above, this canon provides a method of

choosing between otherwise plausible interpretations of a statute. See p. 14,

above. At step two of Chevron, we are simply determining whether an agency’s

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interpretation is permissible. See p. 5, above. An agency’s interpretation may be

permissible even if it would create constitutional issues. See Morales-Izquierdo v.

Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc).2

“[W]e do not abandon Chevron deference at the mere mention of a possible

constitutional problem,”3

 and the Supreme Court has upheld the constitutionality

of mandatory detention in Demore v. Kim, 538 U.S. 510, 531 (2003). Amici Asian

Americans Groups argue that the Supreme Court’s decision in Demore does not

apply because there the alien’s confinement was continuous. This argument is not

correct. The Supreme Court did not state whether there had been a gap in custody.

But, the Ninth Circuit Court of Appeals did, noting that the Attorney General had

taken the alien into custody one day after his release. Kim v. Ziglar, 276 F.3d 523,

526 (9th Cir. 2002) (“The day after his release from state custody, the

2 There the Ninth Circuit Court of Appeals stated:

When Congress has explicitly or implicitly left a gap for an agency to

fill, and the agency has filled it, we have no authority to re-construe the

statute, even to avoid potential constitutional problems; we can only

decide whether the agency’s interpretation reflects a plausible reading

of the statutory text . . . . [T]he constitutional avoidance doctrine . . .

plays no role in the second Chevron inquiry.

Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc)

(internal citation omitted).

3 Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008).

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Immigration and Naturalization Service . . . detained Kim pursuant to 8 U.S.C.

§ 1226(c)(1)(B) . . . .”), rev’d sub nom. Demore v. Kim, 538 U.S. 510 (2003).

Mr. Olmos had six days of freedom, rather than one, after being released on

probation in his criminal case.4

 But, there is nothing in the Supreme Court’s

decision that would cast doubt on the constitutionality of mandatory detention for

someone who had enjoyed six days (rather than one day) of freedom.

According to Mr. Olmos, Demore does not apply because it “involved a

constitutional challenge brought by a noncitizen who conceded § 1226(c)’s

applicability to him.” Appellee’s Resp. Br. at 32 n.13 (citing Demore v. Kim, 538

U.S. 510, 522 (2003)). But, this fact does not distinguish Demore. There the alien

did not deny that he was “deportable” under § 1226(c). Demore, 538 U.S. at 522

(“Nor did he argue that he himself was not ‘deportable’ within the meaning of

4 Mr. Olmos contends that the gap in custody was four months rather than six

days. This contention is incorrect.

The parties apparently agree that physical custody is required to trigger

§ 1226(c): Otherwise, how could the alien be “released”? Mr. Olmos argues that

the physical custody must be ordered as part of the sentence; the government

contends that the physical custody can take place when the alien is arrested. We

need not decide this issue because it was forfeited in district court. See pp. 26-29,

below. But, both parties acknowledge that the Attorney General could not have

taken custody until Mr. Olmos was sentenced to probation in his state criminal

cases. That sentence was imposed six days before the Attorney General took

custody of Mr. Olmos. Thus, the Attorney General’s delay spanned six days—not

four months.

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§ 1226(c).”). But, that is also true here, for Mr. Olmos has not denied that he is

“deportable” for conviction of a crime involving moral turpitude.

Mr. Olmos also tries to narrow the scope of the holding in Demore based

on Justice Kennedy’s separate concurrence. The Court split 5-4 on the

constitutionality of mandatory detention. Justice Kennedy, who was among the

five justices in the majority, noted that due process concerns could arise if

deportation proceedings took too long or continued detention became

“unreasonable or unjustified.” Demore v. Kim, 538 U.S. 510, 532 (2003)

(Kennedy, J., concurring). But, Justice Kennedy did not suggest that a short gap

in custody could render detention unreasonable or unjustified. And, he ultimately

joined the majority opinion, which upheld the constitutionality of mandatory

detention even though the Ninth Circuit had acknowledged a one-day gap in

custody.

In light of Demore, the canon of constitutional avoidance would not suggest

congressional intent to excuse mandatory detention for a six-day gap in custody.5

b. Rule of Lenity

Mr. Olmos has not suggested that we apply lenity at step two. But, if we

were to do so, we would be applying lenity only to decide whether the Board

engaged in a permissible interpretation of § 1226. See p. 5, above. For this

5 Constitutional considerations could become greater when the gap in

custody is considerably longer than six days.

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purpose, lenity would provide little help. See Oppedisano v. Holder, 769 F.3d

147, 153 (2d Cir. 2014) (stating that the rule of lenity “does not trump Chevron’s

requirement of deference to reasonable interpretations by administrative agencies

of statutes for which they are responsible”); Yi v. Fed. Bureau of Prisons, 412

F.3d 526, 535 (4th Cir. 2005) (“Rather than apply a presumption of lenity to

resolve the ambiguity, Chevron requires that we defer to the agency’s reasonable

construction of the statute.”); Perez-Olivo v. Chavez, 394 F.3d 45, 53 (1st Cir.

2005) (“[T]he rule of lenity does not foreclose deference to an administrative

agency’s reasonable interpretation of a statute.”); see also Amador-Palomares v.

Ashcroft, 382 F.3d 864, 868 (8th Cir. 2004) (stating that the rule of lenity “does

not supplant Chevron deference merely because a seemingly harsh outcome may

result from the [Board of Immigration Appeals’] interpretation”).

3. Summary

The Board of Immigration Appeals provided a permissible interpretation of

§ 1226(c)(2), concluding that the reference to Paragraph “1” did not incorporate

the phrase “when the alien is released.” Deferring to this interpretation, we draw

the same conclusion: In § 1226(c)(2), Congress limited the Attorney General’s

power to allow release of aliens identified in “A” through “D” even when there

had been a six-day gap in custody. Thus, Mr. Olmos was not entitled to a bond

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hearing and the district court erred when it declined to authorize mandatory

detention.

III. The Attorney General’s Continued Duty to Impose Mandatory 

Detention

We also reverse for a second reason: Congress required the Attorney

General to impose mandatory detention for aliens like Mr. Olmos who were

convicted of certain crimes; even if the Attorney General failed to fulfill this

requirement in a timely manner (as Mr. Olmos argues), the statutory requirement

would not have disappeared. The requirement would have remained, and the

Attorney General would eventually have had to detain Mr. Olmos under

§ 1226(c).

As noted above, § 1226(c)(1) states: “The Attorney General shall take into

custody any alien who–[fits into Paragraphs “A” through “D”] when the alien is

released . . . .” 8 U.S.C. § 1226(c)(1) (2012). The parties disagree on the meaning

of “when the alien is released.” According to Mr. Olmos, this phrase refers to the

instant in which the alien is released from criminal confinement. For the sake of

argument, we may assume that Mr. Olmos is correct. If he is, the Attorney

General would have had a statutory duty to take custody of Mr. Olmos as soon as

he was released on probation in his criminal case. The Attorney General did not

do that. Instead, he waited six days to take Mr. Olmos into custody. The question

is what happened to the Attorney General’s statutory duty: Did it vanish?

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The Supreme Court has repeatedly held that when a statute requires a

governmental actor (like the Attorney General) to do something within a deadline

and he fails to do it, the requirement continues. E.g., Barnhart v. Peabody Coal

Co., 537 U.S. 149, 158-59 (2003); Brock v. Pierce Cnty. 476 U.S. 253, 260

(1986); see also p. 16 & note 1, above.

Mr. Olmos does not quarrel with this principle. Instead, he argues that a

bond hearing would not strip the Attorney General of the ability to obtain

detention, for he could still pursue detention through a bond hearing. This

argument mischaracterizes the requirement imposed on the Attorney General in

§ 1226(c)(1): The Attorney General must detain aliens in Paragraphs “A” through

“D” without a bond hearing. If an immigration judge orders release after a bond

hearing, the Attorney General would no longer be carrying out the statutory

requirement to take the alien into custody.

The Supreme Court addressed an analogous situation in United States v.

Montalvo-Murillo, 495 U.S. 711 (1990). There the Bail Reform Act required the

district court to conduct a detention hearing immediately upon the individual’s

initial appearance before a judge. Montalvo-Murillo, 495 U.S. at 714. The district

court failed to timely conduct the detention hearing, ruling later that the

government had lost its ability to order detention. Id. at 716.

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Strict enforcement of the court’s deadline would not have left the district

court powerless. Without a detention hearing, the prosecutor could have sought

“any conditions of release that [were] ‘reasonably necessary to assure the

appearance of the person as required and to assure the safety of any other person

and the community.’” Id. at 727 (Stevens, J., dissenting) (quoting 18 U.S.C.

§ 3142(c)(1)(B)(xiv)). Nonetheless, the Supreme Court concluded that the district

court had retained its duty to conduct a detention hearing even if the court had

waited too long. Id. at 717-22.

The Supreme Court’s rationale is equally applicable here. The duty here

involves mandatory detention rather than the holding of a detention hearing (as in

Montalvo-Murillo). The governmental actor here (the Attorney General) is 

similarly situated to the governmental actor in Montalvo-Murillo (the district

court). There the governmental actor’s delay did not vitiate the statutory duty, for

the district court retained the duty to hold a detention hearing. Thus, the delay

here by the governmental actor (the Attorney General) would not have vitiated his

statutory duty to impose detention without a bond hearing even though the

immigration judge might order detention after considering the options.

Mr. Olmos points out that even without mandatory detention, immigration

judges might order detention. But, they might not. See 8 C.F.R. § 1236.1(d)(1)

(2013). For example, here the immigration judge released Mr. Olmos on bond. By

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doing so, the immigration judge prevented the Attorney General from doing what

Congress required of him: to detain Mr. Olmos without a bond hearing.

According to Mr. Olmos, § 1226(c)(1) describes the aliens subject to

mandatory detention. For the sake of argument, we may assume that Mr. Olmos is

correct. But, even if he is, § 1226(c)(1) would constitute an unambiguous

requirement imposed on the Attorney General. The section states: “The Attorney

General shall take into custody any alien who—[falls under ‘A’ through ‘D’]

when the alien is released . . . .” 8 U.S.C. § 1226(c)(1) (2012). Regardless of

whether the section serves a second purpose (describing the aliens subject to

mandatory detention), it unambiguously required the Attorney General to take

custody of Mr. Olmos once he was released in his criminal case.

The Attorney General waited too long to carry out that requirement. Thus,

Mr. Olmos argues that the statutory requirement would have disappeared. But,

Congress’s statutory command did not vanish as a result of the Attorney

General’s delay. That command was for the Attorney General to detain aliens in

certain categories (Paragraphs “A” through “D” of § 1226(c)(1)) without a bond

hearing.

IV. The Petitioner’s Alternative Argument (the Necessity of Confinement

in the Criminal Case)

Mr. Olmos argues in the alternative that § 1226(c) applies only to someone

who has already been subject to incarceration as part of a criminal sentence. If

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this interpretation is correct, Mr. Olmos would not be subject to § 1226(c)

because he was sentenced to probation rather than criminal confinement.

Mr. Olmos forfeited this argument by failing to raise it in his habeas

petition. We interpret the petition liberally because Mr. Olmos was pro se at the

time. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). Even with a liberal construction, however, we cannot fairly interpret the

habeas petition to include this claim.

In the habeas petition, Mr. Olmos included the phrase “from incarceration”

in a single sentence:

As more fully explained in the accompanying memorandum of law, the

plain text, context, and structure of the statute make clear that the

clause “when the alien is released” applies to aliens who are being

released from incarceration on the underlying offense, not from any

offense, and in close temporal proximity to the release for that

underlying offense.

Appellant’s App. at 13. But, Mr. Olmos never made any argument about the fact

that he had not been incarcerated as part of his sentence. Instead, he argued that

§ 1226(c) did not apply because of the Attorney General’s delay in invoking

mandatory detention. Id. at 14.

Mr. Olmos also points to his oral argument in the district court. There Mr.

Olmos began his argument: “I have been looking at this law, 8 U.S.C., but, you

know, I haven’t really spent time in jail, and I do have a possibility of staying in

this country, because my wife is a U.S. citizen, my children are U.S. citizens.”

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Appellee’s Supp. App. at 29. Through this comment, Mr. Olmos apparently was

trying to tell the district court he had not been in serious trouble in his criminal

cases. Whatever Mr. Olmos intended, however, his comment (“I haven’t really

spent time in jail”) could not have alerted either the district court or the

respondent to an argument that § 1226(c) applies only when an alien has been

incarcerated as part of the sentence. Thus, neither the district court nor the

respondent ever addressed the argument.

Because Mr. Olmos failed to present this argument in district court, it is

forfeited. See United States v. Burke, 571 F.3d 1048, 1057 (10th Cir. 2009). If

Mr. Olmos had urged plain error, we could consider it. Id. But, he has not. As a

result, we decline to consider the argument. See Richison v. Ernest Grp., Inc., 634

F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its

application . . . surely marks the end of the road for an argument for reversal not

first presented to the district court.”).

Mr. Olmos argues that we can entertain the argument because it is a central

issue and important to the public interest. But, our discretion is limited. We can

entertain new arguments only when they involve a matter of law and the proper

resolution is certain. Geddes v. United Staffing Alliance Emp. Med. Plan, 469

F.3d 919, 931 (10th Cir. 2006).

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For the sake of argument, we can assume that this issue involves solely a

matter of law. But, the outcome is uncertain. The Board of Immigration Appeals

has held in precedential decisions that “release” under § 1226(c) can refer to

physical custody following arrest. In re West, 22 I. & N. Dec. 1405, 1410 (B.I.A.

2000); In re Kotliar, 24 I. & N. Dec. 124, 125 (B.I.A. 2007). Based in part on

these administrative decisions, one federal appellate court has decided that release

from an arrest had “fulfilled the release requirement” in § 1226(c). Sylvain v.

Attorney Gen., 714 F.3d 150, 161 (3d Cir. 2013). In light of the decisions by the

Board and the federal appeals court, we cannot regard a contrary outcome as

certain. In the absence of this certainty, we decline to address Mr. Olmos’s

interpretation of the term “release.” We defer consideration of that issue to a

future case, when the petitioner has preserved the issue in district court or urged

plain error.

V. Conclusion

Mr. Olmos was not entitled to a bond hearing because (1) we must defer to

the Board’s interpretation of § 1226(c)(2) and (2) the Attorney General would

have had to keep Mr. Olmos in detention even if there had been a gap in custody.

For both reasons, we reverse and remand with instructions to deny the petition for

review.

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