810 F.3d 15 (1st Cir. 2015), 13-1994, Castaneda v. Souza

Docket Nº:13-1994, 13-2509
Citation:810 F.3d 15
Opinion Judge:BARRON, Circuit Judge
Party Name: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. ...
Attorney: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 Attor...
Judge Panel:Before Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatta, and Barron, Circuit Judges. TORRUELLA, Circuit Judge (Concurring). BARRON, Circuit Judge, with whom TORRUELLA and THOMPSON, Circuit Judges, join. TORRUELLA, Circuit Judge (Concurring). KAYATTA, Circuit Judge, with whom HOWARD, Chief...
Case Date:December 23, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
FREE EXCERPT

Page 15

810 F.3d 15 (1st Cir. 2015)

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.

CLAYTON RICHARD GORDON, on behalf of himself and others similarly situated, Petitioner, Appellee, 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

Nos. 13-1994, 13-2509

United States Court of Appeals, First Circuit

December 23, 2015

As corrected December 23, 2015.

Page 16

[Copyrighted Material Omitted]

Page 17

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Michael A. Ponsor, U.S. District Judge.

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., 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.

Matthew 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 petitioners-appellees.

Before Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatta, and Barron, Circuit Judges. TORRUELLA, Circuit Judge (Concurring).

BARRON, Circuit Judge, with whom TORRUELLA and THOMPSON, Circuit Judges, join.

Page 18

EN BANC

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).

OPINION

BARRON, Circuit Judge

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

Page 19

from releasing certain aliens on bond once they have been placed in immigration custody. The key point of dispute 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 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 Nationality 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

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).

Page 20

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

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 Death Penalty Act of 1996 (AEDPA), § 440(c)...

To continue reading

FREE SIGN UP