The issue presented in the instant case is whether the mandatory detention provision at 8 U.S.C. § 1226 applies only when an alien is released from a criminal custody the basis for which is one of the offenses listed in § 1226(c)(1)(A)- (D); or, alternatively, whether it applies whenever an alien, previously convicted of an offense that falls within (c)(1)(A)-(D), is released from any criminal custody regardless of the reason for that detention.
Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) requires this court to conduct a two-part inquiry. First, whether Congress has directly spoken to the precise question at issue. If so, courts, as well as the agency, must give effect to the unambiguously expressed intent of Congress. The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. In determining whether a statute exhibits Chevron-type ambiguity, and hence warrants deference to the Attorney General’s interpretation of the statute, courts look at both the most natural reading of the language and the consistency of the “interpretive clues” Congress provided. In determining the meaning of a statute, this court’s analysis begins with the language of the statute. This court construes language in its context and in light of the terms surrounding it. Another regular interpretive method is reference to statutory history to see if any serious question even about purely textual ambiguity is left. If, after applying these interpretive tools, this court concludes that the statute is ambiguous, it turns to the second question, specifically, whether the agency’s answer is based on a permissible construction of the statute. In applying the second step, this court must defer to an agency’s interpretive regulation unless it is arbitrary, capricious, or manifestly contrary to the statute.
The first step of Chevron requires that this court to focus on the statutory language. This court gives the words of the statute their ordinary meaning unless the context of the statute suggests otherwise. When the plain wording of the statute is clear, that is the end of the matter. This court must remember, however, that the “plain meaning” of a statutory provision is often made clear not only by the words of the statute but by its structure as well. In this court’s view, a natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses. The statutory language embodies the judgment of Congress that such an individual should not be returned to the community pending disposition of his removal proceedings. Both the language and the structure of the statutory provision state this mandate in a clear and straightforward manner.
The “when released” provision immediately follows the list of enumerated offenses, indicating that the former modifies the latter. Additionally, § 1226(c) provides that the alien shall be detained upon release regardless of whether he is subsequently arrested for the “same offense,” reinforcing the notion that the entire clause applies to the list of enumerated offenses immediately preceding it.
The Government’s contention that the “released” language must embrace a broader meaning than a release from custody for an enumerated offense because the statute requires mandatory detention for individuals who are removable or inadmissible based on the commission of certain offenses, whether or not they were convicted of those offenses is without merit. While it is true that a conviction is not always a necessary predicate to inadmissibility or removability, the plain language of the statute does not render the term “when released” meaningless as applied to these subsections. Individuals may be “released” in connection with the offenses listed without any resulting conviction and be subject, therefore, to mandatory detention, consistent with the statute. For example, an alien could be arrested and released without charges. That an alien might have committed a listed offense but never come into any form of custody from which “release” triggers mandatory detention does not justify a reading that attaches the serious consequences of the statute to a subsequent, otherwise wholly inconsequential, incident of criminal custody. A far more natural reading is that the “when released” language applies to an alien who has been detained criminally for one of the listed activities. This reading not only relates the “when released” to the prior language in the subsection, but it also explains the later use of terms related to criminal detention and the use of the term “same offense” at the end of subsection (c)(1).
Indeed, if the reference to “when the alien is released” is read to encompass any release from any non-DHS custodial setting after the expiration of the TPCR, that phrase is completely disjointed from the text that precedes and follows it. As this court has noted, the preceding text specifically enumerates offenses relating to removability; the subsequent reference to the “same offense” is only sensibly read to relate back to the aforementioned statutorily listed “offense.” Absent a clear direction in the text to read multiple uses of the same term to carry different meanings, this court will not do so. Rather, this court will read the term uniformly throughout the provision.
The Government’s proposed reading that the term ‘for the same offense’ refers simply to the ‘offense’ from whose custody the criminal alien is ‘released’ untethers not only the “when released” language itself, but also the entire “when released” clause, including its reference to the “same offense,” from the remainder of the subsection. First, the term “offense,” used in this way, does not appear in the statute. Second, the Government must read a separate, intervening event--post-TPCR non-DHS custody unrelated to the enumerated offenses--into the statute without any direct language to support such a reading. This reading transforms an otherwise straightforward statutory command, relating to specific offenses that Congress itself has identified as warranting special attention, into a mere temporal triggering mechanism. This court sees no justification in the language or structure of the statute for such a transformation. In sum, this court cannot conclude that the Government’s reading is “equally plausible.” The structure of the section at 8 U.S.C. § 1226(c) makes the natural reading of this term refer to the offenses set forth in detail in subsection (c)(1)(A)-(D).
The Government argued that while there is no legislative history that speaks directly to the issue of whether ‘when released’ means only release from criminal incarceration for the underlying removable offense, there was one prior version of the mandatory detention provision that required the Attorney General to take the alien into custody “upon completion of the alien’s sentence for such conviction,” suggesting that, because Congress replaced this language, it meant to divorce the custody from the specific conviction. This argument is without merit. This court approaches all arguments based on legislative history with significant caution. This court examines the legislative history in search of an unmistakable expression of congressional intent. Without citation to any relevant explanation for the change in the legislative language, this court is reluctant to presume that Congress had such a singular purpose, particularly when other, perhaps more plausible, explanations for the change are also evident. In explaining the various passages of IIRIRA, the legislature stated that mandatory detention was meant to apply whenever such an alien is released from imprisonment, regardless of the circumstances of the release. House Conf. Rpt. No. 104-828 at 210-11 (Sept. 24, 1996). Presumably, with that comment, the legislature was seeking to thwart arguments by aliens that because they were subject to parole or other community supervision they could not be taken into immediate immigration detention because that would result in a violation of their imposed conditions. The Court is not persuaded that the legislature was seeking to justify mandatory immigration custody many months or even years after an alien had been released from state custody. In short, the speculative argument based on legislative history pales in the face of a very strong argument based on text and structure. In sum, the Government’s effort to make 8 U.S.C. § 1226(c)(1) “ambiguous” is strained. Reading the provision as a whole, this court thinks it is clear that the “when released” language relates to the listed offenses in subsection (c)(1)(A)-(D).
If this court was to conclude that the statute is ambiguous,
Chevron would direct us to defer to the agency’s interpretation, provided that it is based on a permissible construction of the statute. This court has concluded that the text of the statute is clear. Consequently, because the “when released” language is unambiguous, there is nothing for the agency to interpret--no gap for it to fill--and there is no justification for resorting to agency interpretation to address an ambiguity. However, even if this court was to conclude that the statute were ambiguous, this court could not agree that the BIA’s interpretation is a reasonable one. In addition to the grammatical and logical lapses that this court has pointed out, there are additional difficulties with the agency position. First, the agency’s interpretation would treat similarly situated individuals differently on the basis of a factor not logically connected to the mandatory detention provision. An alien with a conviction identical to the petitioner’s who has not experienced a post-TPCR release from custody would not, the Government admits, be subject to mandatory detention. The Government’s defense of this anomalous result that it is consistent with Congress’s longstanding intent to detain certain criminal aliens paints with far too broad a brush. The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply. The non-retroactivity of the provision hardly undercuts the purposes of mandatory detention; instead, it serves important practical governmental interests in the administration of the enforcement program. More importantly, finding that the “when released” language serves this more limited but focused purpose of preventing the return to the community of those released in connection with the enumerated offenses, as opposed to the amorphous purpose the Government advances, avoids attributing to Congress the sanctioning of the arbitrary and inconsequential factor of any post-TPCR custodial release becoming the controlling factor for mandatory detention.
The Board cites no authority that Congress’s finely tuned legislative product was premised on unsupported assumptions and speculative conclusions that Congress views criminals and terrorist aliens are threats to persons and property in the United States who should be segregated pending a decision on removal, and that they are poor bail risks and they have little likelihood of relief from removal and therefore have little incentive to appear for their hearings, regardless of family and community ties. Indeed, aliens with criminal histories that predate the passage of IIRIRA remain eligible for forms of relief not available to aliens with more recent criminal convictions. In addition, it is counter-intuitive to say that aliens with potentially longstanding community ties are, as a class, poor bail risks. The affected aliens are individuals who committed an offense, and were released from custody for that offense, more than a decade ago. They have continued to live in the United States. By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.
This court does not dispute that Congress has determined that the specified offenses in the mandatory detention provision are of a particularly serious nature warranting greater restrictions on liberty pending removal proceedings. However, this purpose is not sensibly advanced by the Government’s position, which, as this court has noted, draws an arbitrary distinction between individuals who, with respect to the serious crime with which the statute concerns itself, are identical. In view of the logical leaps the Government’s position entails, this court must conclude that, even if the statute were ambiguous, the Government’s interpretation is not reasonable. This court concludes that the meaning of the statute is clear on the issue before the bar; the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody. This court further concludes that, even if the statute were ambiguous, the interpretation of the Board is not reasonable. Accordingly, this court must affirm the judgment of the district court.
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