Nielsen v. Wilcox, 031919 FEDSC, 16-1363

Docket Nº:16-1363
Opinion Judge:ALITO, JUSTICE
Party Name:KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERSV. MONY PREAP, ET AL. v. BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS V. BASSAM YUSUF KHOURY, ET AL.
Judge Panel:JUSTICE Alito Justice Alito, joined by The Chief Justice and Justice KAVANAUGH, Justice Thomas, joined by Justice Gorsuch, concluded ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, in which Roberts, C.J., and T...
Case Date:March 19, 2019
Court:United States Supreme Court
 
FREE EXCERPT

586 U.S. ____ (2019)

KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERSV. MONY PREAP, ET AL.

v.

BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS V. BASSAM YUSUF KHOURY, ET AL.

No. 16-1363

United States Supreme Court

March 19, 2019

Argued October 10, 2018

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U.S.C. §1226(a). Another provision, §1226(c)-enacted out of "concerfn] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings," Demore v. Kim, 538 U.S. 510, 513-sets out four categories of aliens who are inadmissible or deportable for bearing certain links to terrorism or for committing specified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien "when the alien is released" from jail, and §1226(c)(2) forbids the Secretary to release any "alien described in paragraph (1)" pending a determination on removal (with one exception not relevant here).

Respondents, two classes of aliens detained under §1226(c)(2), allege that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens "described in paragraph (1)," even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)-(D). Because the Government must rely on § 1226(a) for their detention, respondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The District Courts ruled for respondents, and the Ninth Circuit affirmed.

Held: The judgments are reversed, and the cases are remanded.

831 F.3d 1193 and 667 Fed.Appx. 966, reversed and remanded.

JUSTICE Alito delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, concluding that the Ninth Circuit's interpretation of § 1226(c) is contrary to the plain text and structure of the statute. Pp. 10-17, 20-26.

(a)The statute's text does not support the argument that because respondents were not arrested immediately after their release, they are not "described in" § 1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)'s adverbial clause "when . . . released" does not modify the noun "alien," which is modified instead by the adjectival clauses appearing in subparagraphs (A)-(D). Respondents contend that an adverb can "describe" a person even though it cannot modify the noun used to denote that person, but this Court's interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive here: the meaning of "described" as it appears in § 1226(c)(2)-namely, "to communicate verbally ... an account of salient identifying features," Webster's Third New International Dictionary 610. That is the relevant definition since the indisputable job of the "description] in paragraph (1)" is to "identif|y]" for the Secretary which aliens she must arrest immediately "when [they are] released." Yet the "when . . . released" clause could not possibly describe aliens in that sense. If it did, the directive given to the Secretary in §1226(c)(1) would be incoherent. Moreover, Congress's use of the definite article in "when the alien is released" indicates that the scope of the word "alien" "has been previously specified in context." Merriam-Webster's Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the "when . . . released" clause appears at the end of paragraph (1). Thus, the class of people to whom "the alien" refers must be fixed by the predicate offenses identified in subparagraphs (A)- (D). Pp. 10-14.

(b) Subsections (a) and (c) do not establish separate sources of arrest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)'s prohibition on release. The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If §1226(c)'s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)'s sentence on the release of aliens to include the words "[e]xcept as provided in subsection (c)." It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested "pursuant to" subsection (c)(1) or "under authority created by" subsection (c)(1), but to anyone so much as "described in" subsection (c)(1). Pp. 15-17.

(c) This reading of §1226(c) does not flout the interpretative canon against surplusage. The "when . . . released" clause still functions to clarify when the duty to arrest is triggered and to exhort the Secretary to act quickly. Nor does this reading have the incongruous result of forbidding the release of a set of aliens whom there is no duty to arrest in the first place. Finally, the canon of constitutional avoidance does not apply where there is no ambiguity. See Warger v. Shauers, 574 U.S. 40, 50. Pp. 20-26.

Justice Alito, joined by The Chief Justice and Justice KAVANAUGH, concluded in Parts II and III-B-2:

(a)This Court has jurisdiction to hear these cases. The limitation on review in § 1226(e) applies only to "discretionary" decisions about the "application" of §1226 to particular cases. It does not block lawsuits over "the extent of the Government's detention authority under the 'statutory framework' as a whole." Jennings v. Rodriguez, 583 U.S.__, __. For reasons stated in Jennings, "§1252(b)(9) does not present a jurisdictional bar." See id., at__ . Whether the District Court in the Preap case had jurisdiction under §1252(f)(1) to grant injunctive relief is irrelevant because the court had jurisdiction to entertain the plaintiffs' request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hearing. Even if that had not been so, these cases would not be moot because the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52. Pp. 7-10.

(b) Even assuming that §1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials" 'shall' act within a specified time" does not by itself "precludfe] action later," Barnhart v. Peabody Coal Co., 537 U.S. 149, 158. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf. Woodfordv. Garceau, 538 U.S. 202, 209. Pp. 17-20.

Justice Thomas, joined by Justice Gorsuch, concluded that three statutory provisions-8 U.S.C. §§1252(b)(9), 1226(e), and 1252(f)(1)-limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. Pp. 1-6.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, in which Roberts, C.J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined, and an opinion with respect to Parts II and III-B-2, in which Roberts, C. J., and Kavanaugh, J., joined. Kavanaugh, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GlNSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, and an opinion with respect to Parts II and III-B-2, in which THE CHIEF JUSTICE and Justice Kavanaugh join.

ALITO, JUSTICE

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody.

Congress has decided, however, that this procedure is too risky in some instances. Congress...

To continue reading

FREE SIGN UP