Category: Rodriguez v. Marin

BARR EXPANDS “NEW AMERICAN GULAG” — Indefinite Detention Without Bond Hearings For Those Who Establish Credible Fear Of Persecution — DHS Detention Capacity Already Outstripped, Requiring 90 Day Delay In Implementing!

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

matter_m-s-_27_in_dec._509_a.g._2019_002

BIA HEADNOTE:

(1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.
(2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole.

KEY QUOTE:

Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indicates that my overruling that decision will have “an immediate and significant impact on [its] detention operations.” DHS Br. 23 n.16. DHS accordingly requests that I delay the effective date of this decision “so that DHS may conduct necessary operational planning.” Id. Federal circuit courts have discretion to delay the effective dates of their decisions, see Fed. R. App. P. 41(b), and I conclude that I have similar discretion. I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions.

************************************

Short Takes:

  • An increase in mandatory detention is sure to mean more “Aimless Docket Reshuffling” (“ADR”); as more detained cases are moved to the front of the docket, they will displace lower priority (but “ready to try”) non-detained cases which will be “shuffled off to Buffalo” thus increasing the already overwhelming backlog; as more Immigration Judges are sent to detention facilities near the border, they will “leave behind” already full dockets creating even more chaos in an already dysfunctional system;
  • Expanding mandatory detention raises the stakes even higher in the pending litigation on whether mandatory prehearing detention without recourse to individualized bond determinations by Immigration Judges violates the Due Process Clause of the Fifth Amendment — See Rodriguez v. Marin, https://immigrationcourtside.com/2018/11/27/our-gang-in-action-9th-cir-remands-jennings-v-rodriguez-keeps-injunction-in-effect-hints-that-administration-scofflaws-could-be-in-for-another-big-loss-will-we-see-th/
  • Obviously, planning for the result they asked for (and these days were almost certain to get from the AG) wasn’t part of the DHS program.

PWS

04-16-19

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SUPREMES BOOST ADMINISTRATION’S “GULAG” WITH SPLIT DECISION ON MANDATORY DETENTION STATUTE — NIELSEN V. PREAP — Why Both Sides “Live To Fight Another Day”

HERE’S THE “FULL TEXT” OF THE DECISION:

PREAP-16-1363_a86c

SYLLABUS BY COURT STAFF (NOT PART OF THE OPINION):

NIELSEN, SECRETARY OF HOMELAND SECURITY,

ET AL. v. PREAP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 16–1363. Argued October 10, 2018—Decided March 19, 2019*

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 “concer[n] that deportable crimi- nal 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 de- portable for bearing certain links to terrorism or for committing spec- ified 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 excep- tion not relevant here).

Respondents, two classes of aliens detained under §1226(c)(2), al- lege that because they were not immediately detained by immigra- tion 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). Be- cause the Government must rely on §1226(a) for their detention, re- spondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The Dis- trict Courts ruled for respondents, and the Ninth Circuit affirmed.

——————

* Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

2 NIELSEN v. PREAP Syllabus

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 com- plements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac- count of salient identifying features,” Webster’s Third New Interna- tional Dictionary 610. That is the relevant definition since the indis- putable job of the “descri[ption] 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 Sec- retary 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 con- text.” 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 para- graph (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 ar- rest 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 prohi- bition 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

Cite as: 586 U. S. ____ (2019) 3

Syllabus

“pursuant to” subsection (c)(1) or “under authority created by” sub- section (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 Secre- tary to act quickly. Nor does this reading have the incongruous re- sult 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 avoid- ance 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 JUSTICEKAVANAUGH, 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 law- suits 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 in- junctive relief is irrelevant because the court had jurisdiction to en- tertain the plaintiffs’ request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained ei- ther 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 hear- ing. Even if that had not been so, these cases would not be moot be- cause 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 “preclud[e] ac- tion 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.Woodford v. 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

4 NIELSEN v. PREAP Syllabus

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 con- curring 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 GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

WHY THE SOLICITOR GENERAL’S OFFICE SHOULD BE HAPPY: 

🙂  They won;

🙂  They whipped the detested Ninth Circuit and bested several of those “liberal West Coast District Judges” who are always meddling, and also whacked the ACLU who was representing the plaintiffs;

🙂  While the issue regarding the constitutionality of mandatory indefinite detention without bond remains, there is some reason to believe that the Supremes will eventually take that issue and the “breakdown” will be the same, thus resulting in another Government victory;

🙂  For now, except in the 9th Circuit, the DHS is free to “slammerize” indefinitely without recourse any foreign national convicted of certain deportable crimes, even if the conviction was long ago, the sentence has been completed, and the individual has stayed out of trouble since release;

🙂 The longer the constitutional issue kicks around the lower Federal Courts, the more “Trumpy” those courts are likely to get.

WHY THE ACLU AND THEIR ALLIES SHOULD ALSO BE HAPPY: 

🙂  They prevailed on the issue of the Court’s jurisdiction to decide the claim;

🙂  This case was decided on a very narrow statutory basis involving rather arcane linguistic analysis;

🙂  The issue of the constitutionality of the mandatory detention statute remains very much “alive” in the lower Federal Courts;

🙂  The ACLU and other plaintiffs have preliminarily won on the constitutional issue in the Ninth Circuit (Rodriguez v. Marin) following a Supreme Court remand (Jennings v. Rodriguez); therefore, an injunction in the Ninth Circuit remains in effect requiring bond hearings every six months for those mandatorily detained pending further proceedings in the U.S. District Court;

🙂 The ACLU is likely to prevail on the constitutional issue in the District Court and the Ninth Circuit; depending on the pace of the lower court proceedings, Rodriguez might not come up for decision by the Supremes until after the 2020 election;

🙂  If the Democrats were to sweep the 2020s (a big “if,” to be sure, particularly after 2016), the ACLU might be able to convince a Democratic President and Congress to solve the problem with legislation mitigating mandatory detention without review, thereby perhaps “mooting” the Supreme Court case before decision;

🙁 But, keep in mind that once in power, Obama and other Democratic Administrations embraced mandatory detention and were more than happy to defend it in court and employ it in practice;

🙂  On the other hand, the ACLU probably can count on the Trump Administration to continue to pile up a record of detention abuses that will “rev up” more Democratic political sentiment for at least some statutory restraints on, if not outright abolition of, long-term civil immigration detention.

Stay tuned!

PWS

03-18-19

 

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