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October 27, 2016
  Preap v. Johnson
Headline: Ninth Circuit holds immigration authorities may detain criminal aliens without a bond hearing only when aliens are detained promptly after their release from criminal custody.

Area of Law: Immigration Law

Issue Presented: Whether the phrase "when the alien is released" in the mandatory detention provision of 8 U.S.C. § 1226(c)(1) permits the government to detain individuals without a bond hearing long after they were released and resettled in the community.

Brief Summary: The Ninth Circuit panel affirmed the district court's finding that the phrase "when...released" in the mandatory detention provision without a bond hearing applies only when immigration detention takes place promptly after release, as opposed to sometime long after. The plaintiffs in the class action were convicted of crimes, served their sentences, and had been released and returned to the community for years before they were arrested and detained by immigration authorities under the mandatory detention provision. The plaintiffs argued that the phrase "when...released" allowed for detention without a bond hearing only when promptly detained after release from criminal custody. The government countered that the statute gave immigration authorities the power to detain without a bond hearing at any time after release. The Ninth Circuit panel considered the text of the statute, the context, and the legislative intent, and held that the legislature intended for the provision to apply only to those criminal aliens who were promptly detained after release from criminal custody. However, the Ninth Circuit panel avoided defining the parameters of what "promptly" would entail, as it was not an issue before the court.

Significance: Criminal aliens who have been released after serving their sentences and long since reentered society may not be detained without a bond hearing. Mandatory detention without a bond hearing as provided under 8 U.S.C. § 1226(c) only applies when the government promptly detains a criminal alien after the individual's release from custody.

Extended Summary: The named plaintiffs in this class action, Mony Preap ("Preap"), Eduardo Vega Padilla ("Padilla"), and Juan Lozano Magdaleno ("Magdaleno") are lawful permanent residents who committed crimes that may lead to their removal from the United States. Upon serving their criminal sentences, plaintiffs returned to their communities where they remained for years. Immigration authorities later took plaintiffs into custody and held them without bond hearings under the mandatory detention provision.

Preap is a lawful resident of the United States since 1981. In 2006 he was twice convicted of possession of marijuana and served both sentences. Years after being released, Preap served a sentence for simple battery, a crime not enumerated in the mandatory detention statute. Upon release, he was held without a bond hearing in immigration detention. Padilla has also been a lawful resident for 30 years. He has convictions for drug possession and owning a firearm with a prior felony conviction. Eleven years after finishing his last criminal sentence, he was placed in mandatory detention. Magdaleno, a lawful resident since 1974, has convictions for owning a firearm with a prior felony conviction and possession of a controlled substance. Magdaleno served his sentence and was released. Over five years later, immigration authorities took him into custody and held him without a bond hearing.

Plaintiffs filed a class action petition for habeas relief in the United States District Court for the Northern District of California. The motion for class certification was granted, and a preliminary injunction was issued requiring all class members to be provided a bond hearing under § 1226(a). The class extended to all "ndividuals in the state of California who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a § 1226(c)(1) offense." Preap v. Johnson, 303 F.R.D. 566, 571, 584 (N.D. Cal. 2014).

The Immigration and Naturalization Act's ("INA") mandatory detention provision, 8 U.S.C. § 1266(c), requires immigration authorities to detain aliens who have committed an offense enumerated in the INA, and to do so "when the alien is released" from criminal custody, without bond. Enumerated offenses range from serious felonies to simple possession of a controlled substance.

The mandatory detention provision has survived several challenges over the years, and has even gone to the Supreme Court of the United States to test its constitutionality. Here the Ninth Circuit panel considered whether the phrase "when [they are] released" in the mandatory detention provision requires that the government detain even those aliens that have resettled into the community. If it does not, then the alien may still be detained, but subject to a bond hearing wherein the alien must show he poses neither a risk of flight nor a danger to the community.

In considering this issue, the Ninth Circuit panel looked to the text of the two relevant statutory provisions. 8 U.S.C. § 1226(a) requires the Attorney General to detain any alien upon the initiation of removal proceedings, and choose to keep the individual in detention or release on conditional parole or bond. The alien may seek review of the Attorney General's decision by an immigration judge, but the immigration judge must consider whether the alien "is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk." Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006); see also 8 § C.F.R. 1236.1(c)(8). The second relevant provision is 8 U.S.C. § 1226(c). Section 1226(c)(1) requires the Attorney General to "take into custody" any alien who has committed an enumerated offense "when the alien is released" from criminal custody. Section 1226(c)(2) prohibits the Attorney General from releasing an alien described in § 1226(c)(1) except for certain aliens in the Federal Witness Protection Program.

Plaintiffs argued that the text "when...released" in § 1226(c)(1) also applies to § 1226(c)(2), thereby allowing aliens to be detained without bond only if they are taken into immigration custody promptly after release from criminal custody. The government, on the other hand, argued that the phrase "when...released" meant that an alien may be held without bond regardless of how much time has passed between criminal custody and immigration custody.

The Ninth Circuit noted a split in authority among United States Circuit Courts of Appeals on this issue. Of the five circuits that have considered the issue, four circuits (the Second, Third, Fourth, and Tenth) sided with the government, while the First Circuit sided with the plaintiffs' position.

The Ninth Circuit panel agreed with the First Circuit's conclusion in Castañeda v. Souza, 810 F.3d 15 (1st Cir. 2015) that the statutory context and legislative history make it clear that the provision allows for a criminal alien to be held without bond only if detained "when...released" from criminal custody, not after a lengthy gap in time. In its opinion, the Ninth Circuit considered and rejected three arguments the government advanced in support of its position: (1) that the court should give Chevron deference to the Board of Immigration Appeals' ("BIA") interpretation; (2) that the phrase "when...released" triggers a duty, rather than a time limit; and (3) even if Congress intended that immigrations promptly detain criminal aliens when they are released, it did not intend that they would lose the authority to do so in the event of delay.

The first issue is whether courts should defer to the BIA's interpretation of § 1226(c)(2) to include any alien described in § 1226(c)(1) as subject to detention without bond, regardless of when the alien was taken into immigration custody. (The Second and Tenth Circuits based their decisions on Chevron deference.) See Lora v. Shanahan, 804 F.3d 601, 612 (2d Cir. 2015); Olmos v. Holder, 780 F.3d 1313, 1322 (10th Cir. 2015). In addressing this issue, the Ninth Circuit panel looked to the text of the statute and the legislative intent and noted that § 1226(c)(2) refers to "an alien described in paragraph (1)" rather than the select subsections within it, and that the legislature must have deliberately selected this language to include the phrase "when...released." Because Congress did not choose to qualify the description of an alien to be those in §§ 1226(c)(1)(A) through 1226(c)(1) (D), the Court included the breadth of § 1226(c)(1) in its interpretation, thus holding that the plain meaning is for the provision to apply to criminal aliens "when...released."

The context of the statute supported this decision, as § 1226(a) provides authority for the detention of any alien in removal proceedings and § 1226(c) provides for the mandatory detention in limited circumstances. Sections 1226(a) and 1226(c) each have their own provisions for both the detention and release of aliens. Thus if the government fails to detain an alien "when...released" under § 1226(c)(2), then the government's authority to do so under § 1226(c) is lost, and the government must proceed under § 1226(a) with a bond hearing provided.

The Ninth Circuit also addressed the BIA's interpretation that authorities may detain on the authority of § 1226(a) while applying the release conditions of § 1226(c)(2). The Board's interpretation was dismissed by looking at the structure of the statute and how § 1226(c) as a whole is entitled "Detention of criminal aliens." The Ninth Circuit panel found this wording as creating an exception to the general rule in § 1226(a). As such, the Ninth Circuit panel found that the provisions in § 1226(c)(2) go into effect only where § 1226(c)(1) is satisfied. The Board's interpretation was further dismissed because following the interpretation would render the "when...released" clause inoperative, and would thereby eliminate any requirement that the alien ever be in custody.

The second issue was whether the phrase "when...released" triggered a duty, rather than a time limit, as the Fourth Circuit held in Hosh v. Lucero, 680 F.3d 375, 380 - 81 (4th Cir. 2012). Plaintiffs argued that there is a time limit under which the government must take criminal aliens into immigration custody promptly after release, as opposed to many years later as was done with Plaintiffs. The government argued that the phrase was ambiguous and allowed for both Plaintiffs' interpretation and for the detention at any time after release from criminal custody.

The Ninth Circuit looked to the plain language of the statute and noted that Congress chose the word "when," which suggests a degree of immediacy as opposed to a condition; it did not use phrases such as "in the event of" or "any time after." Congress's purpose in choosing the words "when...released" sets forth a requirement of promptness because the mandatory detention provision's purpose is to address criminal aliens that present an immediate danger or pose a flight risk. It could not have been Congress's intent to allow the delayed detention of such aliens. Those not detained promptly after release are entitled to a bond hearing.

The third issue was whether the delay in prompt detention deprived immigration authorities of the authority to do so. The government argued that the failure to act as required in § 1226(c)(1) does not preclude them to act under § 1226(c)(2). The Second, Third, and Tenth Circuits have also previously held that it does not. See Sylvain v. Atty Gen. of United States, 714 F.3d 150, 157 (3d Cir. 2013); Lora, 804 F.3d at 612; Olmos, 780 F.3d at 1325 - 26. These circuits relied on United States v. Montalvo-Murillo, 495 U.S. 711 (1990). In Montalvo-Murillo, the Supreme Court considered whether a defendant who did not receive a timely hearing immediately upon the first appearance as required by the Bail Reform Act may be released from custody. The Supreme Court held that "a failure to comply with the first appearance requirement does not defeat the government's authority to seek detention of the person charged." 495 U.S. at 717.

The Ninth Circuit panel distinguished Montalvo-Murrillo from the instant case, finding that the sole practical effect of the district court's decision was to reinstate the government's authority under § 1226(a) as to those not timely detained under § 1226(c), and thus there was no loss of authority. Further, while there was no remedy to a delayed hearing in Montalvo-Murrillo, here the statutory structure makes clear exactly what occurs if a prompt detention under § 1226(c) does not occur - the general detention provision of § 1226(a) applies.

The Ninth Circuit panel rejected the argument that not applying the loss-of-authority doctrine would cause dangerous aliens to be eligible for hearings because the design of the mandatory detention provision is aimed towards the detention of criminal aliens who are recently released and are a risk. According to the court, the more time such individuals have spent in the community leading free and productive lives, the less likely they are to be dangerous and enough of a flight risk to warrant the application of the loss-of-authority doctrine.

In conclusion, the Ninth Circuit panel held that the mandatory detention provision of § 1226(c) applies only to those criminal aliens who are detained promptly after their release from criminal custody. However, the Ninth Circuit panel left undefined, the determination of what period of time is sufficient to meet the requirement that such detainment is "promptly" done, as that was not at issue before the court.

To read the full opinion, please visit:

Panel: Andrew J. Kleinfeld, Jacqueline H. Nguyen, and Michelle T. Friedland, Circuit Judges

Argument Date: July 8, 2015

Date of Issued Opinion: August 4, 2016

Docket Number: 14-16326; 14-16779

Decided: Affirmed

Case Alert Author: Edwin Hong

Hans Harris Chen (argued) and Troy D. Liggett, Trial Attorneys; Elizabeth J. Stevens, Assistant Director; William C. Peachey, Director, District Court Section; Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellants

Theresa H. Nguyen (argued) and Ashok Ramani, Keker & Van Nest LLP, San Francisco, California; Michael K.T. Tan, ACLU Immigrants' Rights Project, New York, New York; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco, California; Anoop Prasad, Asian Law Caucus, San Francisco, California; for Plaintiffs- Appellees

Author of Opinion: Judge Jacqueline H. Nguyen

Circuit: Ninth Circuit

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:32 PM     9th Circuit  

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