Mony Preap; Eduardo Vega Padilla; Juan Lozano Magdaleno, Plaintiffs-Appellees,
Jeh Johnson, Secretary, Department of Homeland Security; Loretta E. Lynch, Attorney General; Timothy S. Aitken; Gregory Archambeault; David Marin, Defendants-Appellants.
and Submitted July 8, 2015 Seattle, Washington
from the United States District Court for the Northern
District of California D.C. No. 4:13-cv-05754-YGR Yvonne
Gonzalez Rogers, District Judge, Presiding
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.
Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen, and
Michelle T. Friedland, Circuit Judges.
panel affirmed the district court's class certification
order and preliminary injunction in a class action habeas
petition brought by criminal aliens subject to mandatory
detention under 8 U.S.C. § 1226(c).
panel held that under the plain language of 8 U.S.C. §
1226(c), the government may detain without a bond hearing
only those criminal aliens it takes into immigration custody
promptly upon their release from the triggering criminal
panel specified that it was holding that the mandatory
detention provision of § 1226(c) applies only to those
criminal aliens detained promptly after their release from
criminal custody, not to those detained long after.
NGUYEN, Circuit Judge:
day in the United States, the government holds over 30, 000
aliens in prison-like conditions while determining whether
they should be removed from the country. Some are held because they were found, in
a bond hearing, to pose a risk of flight or dangerousness. 8
U.S.C. § 1226(a); 8 C.F.R. § 1236.1(d). Others,
however, are held without bond because they have committed an
offense enumerated in a provision of the Immigration and
Naturalization Act ("INA"). 8 U.S.C. §
1226(c). Aliens in this latter group are subject to the
INA's mandatory detention provision, which requires
immigration authorities to detain them "when [they are]
released" from criminal custody, 8 U.S.C. §
1226(c)(1), and to hold them without bond, 8 U.S.C. §
1226(c)(2). A broad range of crimes is covered under the
mandatory detention provision, from serious felonies to
misdemeanor offenses involving moral turpitude and simple
possession of a controlled substance. 8 U.S.C. §§
mandatory detention provision has been challenged on various
grounds. See, e.g., Demore v. Kim, 538 U.S.
510, 513 (2003) (upholding the constitutionality of the
provision against a due process challenge); Rodriguez v.
Robbins, 804 F.3d 1060, 1078-81 (9th Cir. 2015)
(Rodriguez III), cert. granted sub nom.,
Jennings v. Rodriguez, No. 15-1204, 2016 WL 1182403
(June 20, 2016) (holding that detainees are entitled to a
bond hearing after spending six months in
custody). Here, we are faced with
another such challenge; this time, regarding the meaning of
the phrase "when [they are] released" in §
1226(c)(1), and whether it limits the category of aliens
subject to detention without bond under § 1226(c)(2).
Specifically, we must decide whether an alien must
be detained without bond even if he has resettled into the
community after release from criminal custody. If the answer
is no, then the alien may still be detained, but he
may seek release in a bond hearing under § 1226(a) by
showing that he poses neither a risk of flight nor a danger
to the community.
this issue requires us to consider the interaction of the two
paragraphs of the mandatory detention provision, 8 U.S.C.
§ 1226(c). Paragraph (1) requires the Attorney General
("AG") to "take into custody any alien who
[commits an offense enumerated in subparagraphs (A)- (D)]
when the alien is released [from criminal custody]." 8
U.S.C. § 1226(c)(1). Paragraph (2) prohibits the release
of "an alien described in paragraph (1)" except in
limited circumstances concerning witness protection. 8 U.S.C.
§ 1226(c)(2). Plaintiffs argue that the phrase
"when . . . released" in paragraph (1) applies to
paragraph (2) as well, so that an alien must be held without
bond only if taken into immigration custody promptly upon
release from criminal custody for an enumerated offense. The
government, by contrast, argues that "an alien described
in paragraph (1)" is any alien who commits a crime
listed in §§ 1226(c)(1)(A)- (D) regardless of how
much time elapses between criminal custody and immigration
custody. According to the government, individuals not
detained "when . . . released" from criminal
custody as required by paragraph (1) are still considered
"alien[s] described in paragraph (1)" for purposes
of the bar to bonded release in paragraph (2).
date, five of our sister circuits have considered this issue,
and four have sided with the government. Significantly,
however, there is no consensus in the reasoning of these
courts. The Second and Tenth Circuits found that the phrase
"an alien described in paragraph (1)" was
ambiguous, and thus deferred to the BIA's interpretation
of the phrase to mean "an alien described in
subparagraphs (A)-(D) of paragraph (1)." See Lora v.
Shanahan, 804 F.3d 601, 612 (2d Cir. 2015)
("Consistent with Chevron, we are not convinced
that the interpretation is 'arbitrary, capricious, or
manifestly contrary to the statute.'" (quoting
Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012)));
Olmos v. Holder, 780 F.3d 1313, 1322 (10th Cir.
2015) ("The text, the statutory clues, and canons of
interpretation do not definitively clarify the meaning of
§ 1226(c)."). The Fourth Circuit has held that
"when . . . released" means any time after release,
but it did so under a misconception that the BIA had so
interpreted the phrase. Hosh v. Lucero, 680 F.3d 375,
380-81 (4th Cir. 2012). Finally, the Second, Third, and Tenth
Circuits applied the loss-of-authority rule, finding that the
AG's duty to detain criminal aliens under §
1226(c)(1) continues even if the government fails to comply
with the "when . . . released" condition. See,
e.g., Sylvain v. Atty Gen. of United States,
714 F.3d 150, 157 (3d Cir. 2013) (holding that "[e]ven
if the statute calls for detention 'when the alien is
released, ' and even if 'when' implies something
less than four years, nothing in the statute suggests that
immigration officials lose authority if they delay");
see also Lora, 804 F.3d at 612; Olmos, 780
F.3d at 1325-26.
other hand, the government's position has been rejected
by most district courts to consider the question and, most
recently, by three of six judges sitting en banc in the First
Circuit. See Castañeda v.
Souza, 810 F.3d 15, 18-43 (1st Cir. 2015) (en banc)
(Barron, J.). In an opinion written by Judge Barron, these
three judges concluded that the statutory context and
legislative history make clear that aliens can be held
without bond under § 1226(c)(2) only if taken into
immigration custody pursuant to § 1226(c)(1) "when
. . . released" from criminal custody, not if there is a
lengthy gap after their release. See id. at 36, 38.
agree with Judge Barron and his two colleagues. The statute
unambiguously imposes mandatory detention without bond only
on those aliens taken by the AG into immigration custody
"when [they are] released" from criminal custody.
And because Congress's use of the word "when"
conveys immediacy, we conclude that the immigration detention
must occur promptly upon the aliens' release from
named Plaintiffs in this case are lawful permanent residents
who have committed a crime that could lead to removal from
the United States. Plaintiffs served their criminal sentences
and, upon release, returned to their families and
communities. Years later, immigration authorities took them
into custody and detained them without bond hearings under
§ 1226(c). Plaintiffs argue that because they were not
detained "when . . . released" from criminal
custody, they were not subject to mandatory detention under
§ 1226(c). 
Preap, born in a refugee camp after his family fled
Cambodia's Khmer Rouge, has been a lawful permanent
resident of the United States since 1981, when he immigrated
here as an infant. He has two 2006 misdemeanor convictions
for possession of marijuana. Years after being released at
the end of his sentences for these convictions, Preap was
transferred to immigration detention upon serving a short
sentence for simple battery (an offense not covered by the
mandatory detention statute) and held without a bond hearing.
Since the instant litigation began, Preap has been granted
cancellation of removal and released from immigration
Vega Padilla has been a lawful permanent resident since 1966,
shortly after he came to the United States as an infant.
Padilla also has two drug possession convictions-one from
1997 and one from 1999-and a 2002 conviction for owning a
firearm with a prior felony conviction. Eleven years after
finishing his sentence on that last conviction, he was placed
in removal proceedings and held in mandatory detention.
Padilla eventually obtained release after receiving a bond
hearing under our decision in Rodriguez v. Robbins
(Rodriguez II), 715 F.3d 1127, 1144 (9th Cir. 2013),
in which we held that the government's detention
authority shifts from § 1226(c) to § 1226(a) after
a detainee has spent six months in custody; Rodriguez
v. Robbins, 804 F.3d 1060, 1078-81 (9th Cir.
2015) (Rodriguez III), cert. granted sub
nom., Jennings v. Rodriguez, No. 15-1204, 2016
WL 1182403 (June 20, 2016).
Lozano Magdaleno has been a lawful permanent resident since
he immigrated to the United States as a teenager in 1974.
Magdaleno has a 2000 conviction for owning a firearm with a
prior felony conviction, and a 2007 conviction for simple
possession of a controlled substance. He was sentenced to six
months on the possession charge and released from jail in
January 2008. Over five years later, Magdaleno was taken into
immigration custody and held without bond pursuant to §
1226(c). He also was later released from detention following
a Rodriguez hearing.
three Plaintiffs filed a class action petition for habeas
relief in the Northern District of California. The district
court granted their motion for class certification,
certifying a class of all "[i]ndividuals in the state of
California who are or will be subjected to mandatory
detention under 8 U.S.C. section 1226(c) and who were not or
will not have been taken into custody by the government
immediately upon their release from criminal custody for a
Section 1226(c)(1) offense." The district court also
issued a preliminary injunction requiring the government to
provide all class members with bond hearings under §
1226(a).Preap v. Johnson,
303 F.R.D. 566, 571, 584 (N.D. Cal. 2014). This appeal
jurisdiction to review this class action habeas petition
under 28 U.S.C. § 1291. The jurisdiction-stripping
provision of 8 U.S.C. § 1226(e), which bars judicial
review of discretionary agency decisions regarding immigrant
detention, does not bar us from hearing "challenges [to]
the statutory framework that permits [petitioners']
detention without bail." Demore v. Kim, 538
U.S. 510, 517 (2003). We review questions of statutory
construction de novo. United States v. Bert, 292
F.3d 649, 651 (9th Cir. 2002).
government's authority to detain immigrants in removal
proceedings arises from two primary statutory
sources. The first, 8 U.S.C. §
1226(a), grants the AG discretion to arrest and detain any
alien upon the initiation of removal
proceedings. Under this provision, the AG
may then choose to keep the alien in detention, or allow
release on conditional parole or bond. 8 U.S.C. §
1226(a)(1)-(2). If the AG
opts for detention, the alien may seek review of that
decision at a hearing before an immigration judge
("IJ"), 8 C.F.R. § 236.1(d)(1), who may
overrule the AG and grant release on bond, id.
§ 1003.19. The alien bears the burden of proving his
suitability for release, and the IJ should consider whether
he "is a threat to national security, a danger to the
community at large, likely to abscond, or otherwise a poor
bail risk." Matter of Guerra, 24 I. & N.
Dec. 37, 40 (BIA 2006); see also 8 § C.F.R.
second provision is 8 U.S.C. § 1226(c), the mandatory
detention provision at issue in this case. Importantly, this
provision operates as a limited exception to § 1226(a).
See 8 U.S.C. § 1226(a). ("Except
as provided in ...