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Preap v. Johnson

United States Court of Appeals, Ninth Circuit

August 4, 2016

Mony Preap; Eduardo Vega Padilla; Juan Lozano Magdaleno, Plaintiffs-Appellees,
v.
Jeh Johnson, Secretary, Department of Homeland Security; Loretta E. Lynch, Attorney General; Timothy S. Aitken; Gregory Archambeault; David Marin, Defendants-Appellants.

          Argued and Submitted July 8, 2015 Seattle, Washington

         Appeal 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

          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.

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

         SUMMARY[*]

         Immigration

         The panel affirmed the district court's class certification order and preliminary injunction in a class action habeas petition brought by criminal aliens subject to mandatory detention under 8 U.S.C. § 1226(c).

         The panel held that under the plain language of 8 U.S.C. § 1226(c), the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from the triggering criminal custody.

         The panel specified that it was holding that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after.

          OPINION

          NGUYEN, Circuit Judge:

         Every day in the United States, the government holds over 30, 000 aliens in prison-like conditions while determining whether they should be removed from the country.[1] Some are held because they were found, in a bond hearing, to pose a risk of flight or dangerousness. 8 U.S.C. § 1226(a); 8 C.F.R. § 1236.1(d). Others, however, are held without bond because they have committed an offense enumerated in a provision of the Immigration and Naturalization Act ("INA"). 8 U.S.C. § 1226(c). Aliens in this latter group are subject to the INA's mandatory detention provision, which requires immigration authorities to detain them "when [they are] released" from criminal custody, 8 U.S.C. § 1226(c)(1), and to hold them without bond, 8 U.S.C. § 1226(c)(2). A broad range of crimes is covered under the mandatory detention provision, from serious felonies to misdemeanor offenses involving moral turpitude and simple possession of a controlled substance. 8 U.S.C. §§ 1226(c)(1)(A)-(D).

         This mandatory detention provision has been challenged on various grounds. See, e.g., Demore v. Kim, 538 U.S. 510, 513 (2003) (upholding the constitutionality of the provision against a due process challenge); Rodriguez v. Robbins, 804 F.3d 1060, 1078-81 (9th Cir. 2015) (Rodriguez III), cert. granted sub nom., Jennings v. Rodriguez, No. 15-1204, 2016 WL 1182403 (June 20, 2016) (holding that detainees are entitled to a bond hearing after spending six months in custody).[2] Here, we are faced with another such challenge; this time, regarding the meaning of the phrase "when [they are] released" in § 1226(c)(1), and whether it limits the category of aliens subject to detention without bond under § 1226(c)(2). Specifically, we must decide whether an alien must be detained without bond even if he has resettled into the community after release from criminal custody. If the answer is no, then the alien may still be detained, but he may seek release in a bond hearing under § 1226(a) by showing that he poses neither a risk of flight nor a danger to the community.

         Addressing this issue requires us to consider the interaction of the two paragraphs of the mandatory detention provision, 8 U.S.C. § 1226(c). Paragraph (1) requires the Attorney General ("AG") to "take into custody any alien who [commits an offense enumerated in subparagraphs (A)- (D)] when the alien is released [from criminal custody]." 8 U.S.C. § 1226(c)(1). Paragraph (2) prohibits the release of "an alien described in paragraph (1)" except in limited circumstances concerning witness protection. 8 U.S.C. § 1226(c)(2). Plaintiffs argue that the phrase "when . . . released" in paragraph (1) applies to paragraph (2) as well, so that an alien must be held without bond only if taken into immigration custody promptly upon release from criminal custody for an enumerated offense. The government, by contrast, argues that "an alien described in paragraph (1)" is any alien who commits a crime listed in §§ 1226(c)(1)(A)- (D) regardless of how much time elapses between criminal custody and immigration custody. According to the government, individuals not detained "when . . . released" from criminal custody as required by paragraph (1) are still considered "alien[s] described in paragraph (1)" for purposes of the bar to bonded release in paragraph (2).

         To date, five of our sister circuits have considered this issue, and four have sided with the government. Significantly, however, there is no consensus in the reasoning of these courts. The Second and Tenth Circuits found that the phrase "an alien described in paragraph (1)" was ambiguous, and thus deferred to the BIA's interpretation of the phrase to mean "an alien described in subparagraphs (A)-(D) of paragraph (1)." See Lora v. Shanahan, 804 F.3d 601, 612 (2d Cir. 2015) ("Consistent with Chevron, we are not convinced that the interpretation is 'arbitrary, capricious, or manifestly contrary to the statute.'" (quoting Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012))); Olmos v. Holder, 780 F.3d 1313, 1322 (10th Cir. 2015) ("The text, the statutory clues, and canons of interpretation do not definitively clarify the meaning of § 1226(c)."). The Fourth Circuit has held that "when . . . released" means any time after release, but it did so under a misconception that the BIA had so interpreted the phrase.[3] Hosh v. Lucero, 680 F.3d 375, 380-81 (4th Cir. 2012). Finally, the Second, Third, and Tenth Circuits applied the loss-of-authority rule, finding that the AG's duty to detain criminal aliens under § 1226(c)(1) continues even if the government fails to comply with the "when . . . released" condition. See, e.g., Sylvain v. Atty Gen. of United States, 714 F.3d 150, 157 (3d Cir. 2013) (holding that "[e]ven if the statute calls for detention 'when the alien is released, ' and even if 'when' implies something less than four years, nothing in the statute suggests that immigration officials lose authority if they delay"); see also Lora, 804 F.3d at 612; Olmos, 780 F.3d at 1325-26.

         On the other hand, the government's position has been rejected by most district courts to consider the question and, most recently, by three of six judges sitting en banc in the First Circuit.[4] See Castañeda v. Souza, 810 F.3d 15, 18-43 (1st Cir. 2015) (en banc) (Barron, J.). In an opinion written by Judge Barron, these three judges concluded that the statutory context and legislative history make clear that aliens can be held without bond under § 1226(c)(2) only if taken into immigration custody pursuant to § 1226(c)(1) "when . . . released" from criminal custody, not if there is a lengthy gap after their release. See id. at 36, 38.

         We agree with Judge Barron and his two colleagues. The statute unambiguously imposes mandatory detention without bond only on those aliens taken by the AG into immigration custody "when [they are] released" from criminal custody. And because Congress's use of the word "when" conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens' release from criminal custody.

         I.

         The named Plaintiffs in this case are lawful permanent residents who have committed a crime that could lead to removal from the United States. Plaintiffs served their criminal sentences and, upon release, returned to their families and communities. Years later, immigration authorities took them into custody and detained them without bond hearings under § 1226(c). Plaintiffs argue that because they were not detained "when . . . released" from criminal custody, they were not subject to mandatory detention under § 1226(c). [5]

         Mony Preap, born in a refugee camp after his family fled Cambodia's Khmer Rouge, has been a lawful permanent resident of the United States since 1981, when he immigrated here as an infant. He has two 2006 misdemeanor convictions for possession of marijuana. Years after being released at the end of his sentences for these convictions, Preap was transferred to immigration detention upon serving a short sentence for simple battery (an offense not covered by the mandatory detention statute) and held without a bond hearing. Since the instant litigation began, Preap has been granted cancellation of removal and released from immigration custody.[6]

         Eduardo Vega Padilla has been a lawful permanent resident since 1966, shortly after he came to the United States as an infant. Padilla also has two drug possession convictions-one from 1997 and one from 1999-and a 2002 conviction for owning a firearm with a prior felony conviction. Eleven years after finishing his sentence on that last conviction, he was placed in removal proceedings and held in mandatory detention. Padilla eventually obtained release after receiving a bond hearing under our decision in Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1144 (9th Cir. 2013), in which we held that the government's detention authority shifts from § 1226(c) to § 1226(a) after a detainee has spent six months in custody; Rodriguez v. Robbins, 804 F.3d 1060, 1078-81 (9th Cir. 2015) (Rodriguez III), cert. granted sub nom., Jennings v. Rodriguez, No. 15-1204, 2016 WL 1182403 (June 20, 2016).

         Juan Lozano Magdaleno has been a lawful permanent resident since he immigrated to the United States as a teenager in 1974. Magdaleno has a 2000 conviction for owning a firearm with a prior felony conviction, and a 2007 conviction for simple possession of a controlled substance. He was sentenced to six months on the possession charge and released from jail in January 2008. Over five years later, Magdaleno was taken into immigration custody and held without bond pursuant to § 1226(c). He also was later released from detention following a Rodriguez hearing.

         These three Plaintiffs filed a class action petition for habeas relief in the Northern District of California. The district court granted their motion for class certification, certifying a class of all "[i]ndividuals in the state of California who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a Section 1226(c)(1) offense." The district court also issued a preliminary injunction requiring the government to provide all class members with bond hearings under § 1226(a).[7]Preap v. Johnson, 303 F.R.D. 566, 571, 584 (N.D. Cal. 2014). This appeal followed.

         II.

         We have jurisdiction to review this class action habeas petition under 28 U.S.C. § 1291. The jurisdiction-stripping provision of 8 U.S.C. § 1226(e), which bars judicial review of discretionary agency decisions regarding immigrant detention, does not bar us from hearing "challenges [to] the statutory framework that permits [petitioners'] detention without bail." Demore v. Kim, 538 U.S. 510, 517 (2003). We review questions of statutory construction de novo. United States v. Bert, 292 F.3d 649, 651 (9th Cir. 2002).

         III.

         The government's authority to detain immigrants in removal proceedings arises from two primary statutory sources.[8] The first, 8 U.S.C. § 1226(a), grants the AG discretion to arrest and detain any alien upon the initiation of removal proceedings.[9] Under this provision, the AG may then choose to keep the alien in detention, or allow release on conditional parole or bond. 8 U.S.C. § 1226(a)(1)-(2).[10] If the AG opts for detention, the alien may seek review of that decision at a hearing before an immigration judge ("IJ"), 8 C.F.R. § 236.1(d)(1), who may overrule the AG and grant release on bond, id. § 1003.19. The alien bears the burden of proving his suitability for release, and the IJ should consider whether he "is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk." Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006); see also 8 § C.F.R. 1236.1(c)(8).

         The second provision is 8 U.S.C. § 1226(c), the mandatory detention provision at issue in this case. Importantly, this provision operates as a limited exception to § 1226(a). See 8 U.S.C. § 1226(a). ("Except as provided in ...


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