Portal:Supreme Court of the United States

“ I continue to believe that no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered. See Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 1–11) . By my count, Congress has erected at least three barriers to our review of the merits, and I also question whether Article III jurisdiction existed at the time of class certification. ”

“ Respondents say we should be uneasy about endorsing any reading of §1226 (c) that would mandate arrest and detention years after aliens’ release from criminal custody–when many aliens will have developed strong ties to the country and a good chance of being allowed to stay if given a hearing. At that point, respondents argue, mandatory detention may be insufficiently linked to public benefits like protecting others against crime and ensuring that aliens will appear at their removal proceedings. ”

“ I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress’ likely intent, an intent that is consistent with our basic values. To speak more technically, I believe that aliens are subject to paragraph (2) ’s bar on release only if they are detained “when... released” from criminal custody. ”

“ If the majority were correct that the “when... released” provision does not set a time limit on the Secretary’s authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Government simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. ”

“ It is undisputed that Congress may mandate that the Executive Branch detain certain noncitizens during removal proceedings or before removal. Congress has in fact mandated detention of certain noncitizens who have been in criminal custody and who, upon their release, would pose a danger to the community or risk of flight. ”

“ This shows that it is possible for those arrested under subsection (a) to face mandatory detention under subsection (c) . We draw a similar inference from the fact that subsection (c) (2) , for its part, 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) . This choice of words marks a contrast with Congress’s reference–in the immediately preceding subsection–to actions by the Secretary that are “authorized under” subsection (a) . ”

“ The steak “described in Instruction (1) ” is not just an “Angus” steak, but an “Angus” steak that must be “remove [d] ... when the steak is cooked to 120 degrees Fahrenheit.” By the same logic, the alien in paragraph (1) is “described” not only by the four clauses–A, B, C, and D–that directly modify the word “alien,” but also by the verb (“shall take”) and that verb’s modifier (“when the alien is released”) .
The majority argues that “the crucial point” is that the phrase “when the alien is released” plays “no role in identifying for the Secretary which aliens she must immediately arrest.” ”

“ If that is so, then as in other cases, accepting respondents’ deadline-based argument would be inconsistent with “the design and function of the statute.” Montalvo-Murillo, 495 U. S., at 719. From Congress’s perspective, after all, it is irrelevant that the Secretary could go on detaining criminal aliens subject to a bond hearing. Congress enacted mandatory detention precisely out of concern that such individualized hearings could not be trusted to reveal which “deportable criminal aliens who are not detained” might “continue to engage in crime [or] fail to appear for their removal hearings.” ”

“ The “inherently transitory” exception is measured from the time that the complaint is filed to the court’s ruling on the motion for class certification. See Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 75–77 (2013) . In other words, the named plaintiff’s standing in a class action need not exist throughout the lifecycle of the entire lawsuit. Here, Members of the Court have recognized that aliens are held, on average, for one year, and sometimes longer. ”

“ And thus, like others detained under §1226 (a) , they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others–or so they claim. But neither the statute’s text nor its structure supports this argument. In fact, both cut the other way.
A
First, respondents’ position runs aground on the plain text of §1226 (c) . Respondents are right that only an alien “described in paragraph (1) ” faces mandatory detention, but they are wrong about which aliens are “described in” paragraph (1) . ”

“ Bassam Yusuf Khoury and Alvin Rodriguez Moya, who had been released on bond before class certification after their Rodriguez hearings, and Pablo Carrera Zavala, who was released before class certification because the Department of Homeland Security determined that he had not committed a predicate §1226 (c) (1) offense. The District Court certified a class of all aliens in its judicial district who were not detained immediately upon their release from criminal custody but were subjected to mandatory detention under §1226 (c) . ”

“ First, §1252 (b) (9) bars judicial review of “all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States,” except for review of “a final order” or other circumstances not present here. ”

“ That is because a person who has been subjected to an action can be described by that action no less than by an adjective. See Peters, supra, at 386 (describing such a person as someone “affected by the action”) ”

“ Attorney General of U. S., 714 F. 3d 150, 158 (CA3 2013) (collecting cases) . Or more precisely, a statutory rule that officials “ ‘shall’ act within a specified time” does not by itself “preclud [e] action later.” ”

“ Pierce County, 476 U. S. 253, 266 (1986) (holding that the Government’s failure to observe a 120-day statutory deadline did not deprive it of authority under the statute) .
I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the Government must be enforced at least in contexts where “other part [s] ” of the relevant statutes indicate that the time limit must be enforced, Montalvo-Murillo, supra, at 717; see also Barnhart, supra, at 161, 163; Dolan v. United States, 560 U. S. 605, 613 (2010) ”

“ B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 452 (2016) (describing such a person as someone who “is acted on by or receives the action”) ; see also R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 1436 (2002) (noting the “large-scale overlap” between adjectives and certain verb forms) .
An example illustrates how these principles apply to the statute at issue here. Imagine the following cookbook recipe. Instruction (1) says: “ (1) Remove the Angus steak from the grill when the steak is cooked to 120 degrees Fahrenheit.” ”

“ Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.
A provision of the Immigration and Nationality Act, 8 U. S. C. §1226 (c) , focuses upon potentially deportable noncitizens who have committed certain offenses or have ties to terrorism. ”

“ B–2, supra–a long line of precedent that the dissent does not question. ↑ In Alafyouny, 2006 WL 1581959, for example, an alien subject to mandatory detention had not been charged with any crime. Rather, in a hearing to consider his application for adjustment of status, an immigration judge found that the alien had engaged in terrorism-related activity identified in §1182 (a) (3) (B) (iv) (IV) (cc) , which qualified him for mandatory detention under §1226 (c) (1) (D) . ”

“ The issue before us is entirely statutory and requires our interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. ”